EU Immigration and Asylum Law: A Commentary 9781782257615, 9781849468619

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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 border controls, visas, immigration and asylum. For that reason, legal and political debates at national and the European 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 15 years of legislative activities at EU level, 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 rules on the entry and residence of family members, students, seasonal workers or inter-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 national and supranational level. It is the purpose of this commentary to support all those involved in different functions and at various levels in the interpretation and application of European rules: judges at domestic courts, officials working for administrative authorities or national ministries, members of civil society, practicing lawyers, civil servants with an EU institution and academics. To support all these readers required the authors to pay attention to both the seemingly technical detail of a specific measure and the grand scheme connecting different instruments. The chapters of this commentary are meant to achieve both in parallel through a combination of four thematic introductions and more specialised sections on no less than 20 different instruments. In order to provide readers with a comprehensive overview of European immigration and asylum law, this book employs the method of a ‘commentary’ in the German tradition explaining the content 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 cross-references, to related information elsewhere in the commentary. By way of example, someone interested in the scope and interpretation of the equal treatment provision in Article 11 Long-Term Residents Directive will open the relevant pages on this article and look for the information he/she requires. In addition, the four thematic introductions provide readers with an outline of overarching legal, constitutional and contextual questions relevant for a better understanding of the policy field as a whole. We have paid attention to bring together a rich collection of different 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 share exactly the same opinions on underlying themes. Therefore, different views on overlapping issues of interpretation cannot be excluded. But we are united by the ambition to provide our readers with reliable and in-depth materials on a complex area of the law.

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Preface 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 and objectivity are meant to be core features of this commentary which intends primarily to present the law as it stands, while always keeping in mind that existing rules may provide a large scope for divergent interpretation. 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 also in areas where no case law exists so far. As a transnational undertaking, it is not the purpose of this commentary to give detailed information on how different Member States implemented European rules. It aims, rather, to describe the content of existing European legislation, to identify potential interpretation issues and to provide arguments for applying such rules. 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 into their line of argument. We hope that the common methodological concept underlying a commentary articleby-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. Dr. h.c. Kay Hailbronner Prof. Dr. Daniel Thym University of Konstanz Research Centre Immigration & Asylum Law Universita¨tsstraße 10, D-78457 Konstanz, Germany [email protected]; [email protected]

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Acknowledgments The editors express their gratitude to the assistants of the Chair of European and International Law and the Research Centre for Immigration and Asylum Law at the University of Konstanz. Throughout the preparation of the second edition, Tobias Klarmann, Sigrid Gies and Carolin Beverungen Are´valo invested much time into the project and showed their dedication by editing this commentary. We hope that they will soon complete a successful PhD thesis in the field of refugee law. The editors owe great debt to Sabine Appt who did an excellent coordination work for the first edition. This time-consuming project could not have been completed without the invaluable help provided by the student assistants of the university chair: Greta Baaken, Constanze Bolkart, Christian Goulart McNerney, Stefanie Jetter, Anna Maurer, Jonas Mu¨ller, Moritz Raiser, Felicitas Sauerbrei, Sophie Scholl, Fabian Vichtl, Felix Weber and Linda Wischrath. They did a wonderful job in preparing the word files for the commentary and in checking compliance with the style guide. Our contact person with the publisher, Dr. Wilhelm Warth, deserves credit for his reliable and flexible cooperation.

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List of Authors Carolin Are´valo, Research Assistant at the Chair for Public Law, International and European Law, University of Konstanz/Germany Hemme Battjes, Prof. Dr., Professor at the VU University Amsterdam/The Netherlands Alan Desmond, Dr., DE.MA Fellow, The European Inter-University Centre for Human Rights and Democratisation (EIUC), Venice/Italy Harald Do¨rig, Prof. Dr., Judge at the Federal Administrative (Supreme) Court, Leipzig/Germany, Professor at the University of Jena/Germany Andrea Egbuna-Joss, Research Fellow at the Institute for European Law and the Institute for Federalism, University of Fribourg/Switzerland Astrid Epiney, Prof. Dr., Professor at the University of Fribourg/Switzerland, Managing Director of the Institute for European Law, Vice Chancellor of the University of Fribourg/Switzerland Sigrid Gies, Research Assistant at the Chair for Public Law, International and European Law, University of Konstanz/Germany Kay Hailbronner, Prof. Dr., Professor emeritus at the University of Konstanz and Director at the Center for Immigration & Asylum, Konstanz/Germany, Member of the Odysseus Network of Academic Experts on Immigration and Asylum Law in Europe Julia Herzog-Schmidt, Dr., Advisor of the Information, Counselling and Legal Assistance (ICLA) programme at the Norwegian Refugee Council (NRC), Beirut/Lebanon Constantin Hruschka, Dr., Rechtsanwalt, Head of the Protection Department of the Swiss Refugee Council and Lecturer at the University of Fribourg/Switzerland and Bielefeld/Germany, Bern/Switzerland Sara Iglesias Sa´nchez, Dr., Re´fe´rendaire, Court of Justice of the European Union Tobias Jo¨st, Independent consultant, Oslo/Norway Marcel Kau, Dr., Privatdozent at the University of Konstanz/Germany Tobias Klarmann, Research Assistant at the Chair for Public Law, International and European Law, University of Konstanz/Germany Ingo Kraft, Prof. Dr., Judge at the Federal Administrative (Supreme) Court, Leipzig/Germany. Professor at the University of Leipzig/Germany Hendrik Lo¨rges, LL.M., Legal Officer at the German Federal Ministry of the Interior, Berlin/Germany Fabian Lutz, Principal Administrator, European Commission, DG Home Affairs -Immigration Unit Francesco Maiani, Prof. Dr., Professor in Public Law at the University of Lausanne/Switzerland Sergo Mananashvili, Dr., Migration Policy Centre, European University Institute, Florence/Italy Annalisa Meloni, Dr., Senior Lecturer, University of East London/United Kingdom Markus Peek, Dr., Legal Officer at the Federal Department of Justice and Police, Federal Office for Migration, Berne/Switzerland Bernard Ryan, Prof. Dr., Professor of Migration Law, University of Leicester/United Kingdom Florian Schierle, Legal Officer at the Federal Ministry of Labour and Social Affairs, Berlin/Germany Achilles Skordas, Prof. Dr., Professor of International Law, University of Bristol/United Kingdom, Member of the Odysseus Network of Academic Experts on Immigration and Asylum Law in Europe Hugo Storey, Judge at the UK Upper Tribunal Immigration and Asylum Chamber Daniel Thym, Prof. Dr., Professor at the University of Konstanz and Director at the Center for Immigration & Asylum, Konstanz/Germany, Member of the Odysseus Network of Academic Experts on Immigration and Asylum Law in Europe Evangelia (Lilian) Tsourdi, LL.M. (Athens and Essex), Ph.D. candidate, Universite´ libre de Bruxelles (ULB)/Belgium; researcher, Universite´ catholique de Louvain (UCL)/Belgium Jens Vedsted-Hansen, Prof. Dr., Professor at Aarhus University/Denmark, Director at the INTRAlaw Research Centre, Aarhus/Denmark, Member of the Danish Refugee Appeals Board, Member of the Odysseus Network of Academic Experts on Immigration and Asylum Law in Europe Anja Wiesbrock, Dr., Senior Judicial Adviser at the Research Council of Norway

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List of Abbreviations ADD ............................................ AFSJ ............................................. AG ................................................ AMIF ........................................... Asylum Procedures Directive ..................................... Asylum Qualification Directive .....................................

Asylum Reception Directive .. Blue Card Directive ................. BVerfGE ..................................... BVerwGE .................................... C ................................................... CAT ............................................. CEAS ........................................... CEPS ............................................ cf. .................................................. CFI ............................................... CFR .............................................. Citizenship Directive ...............

CJEL ............................................ CJEU ............................................ CML Rev. ................................... CoE .............................................. COM ............................................ CoR .............................................. COREPER .................................. CRC ............................................. CUP ............................................. doc. .............................................. Dublin II Regulation ................

Dublin III Regulation ..............

e. g. ...............................................

addendum Area of Freedom, Security and Justice Advocate General Asylum, Migration and Integration Fund 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) 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 2011 L 337/9) 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 (OJ 2013 L 180/96) 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) Decision of the German Federal Constitutional Court Decision of the German Federal Administrative Court Commission Documents relating to official instruments for which the Commission has sole responsibility Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Common European Asylum System Centre for European Policy Studies 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) Columbia Journal of European Law Court of Justice of the European Union Common Market Law Review Council of Europe Commission Documents for the other institutions (legislative proposals, communications, reports, etc.) 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

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List of Abbreviations EASO ........................................... EBGT ........................................... EC ................................................ ECHR .......................................... ECJ ............................................... ECR .............................................. ECRE ........................................... ECtHR ......................................... ed/eds .......................................... EEA .............................................. EEC .............................................. EFTA ........................................... EJIL .............................................. EJML ........................................... EL Rev. ........................................ ELJ ............................................... Employers Sanctions Directive ..................................... EP ................................................. ESC .............................................. et al. ............................................. et seq ........................................... et seqq ......................................... etc. ................................................ EU ................................................ EuConst ...................................... Eurodac Regulation ..................

EUROSTAT ............................... Family Reunification Directive ..................................... former Asylum Procedures Directive ..................................... former Asylum Qualification Directive ..................................... former Asylum Reception Directive ..................................... Free Movement Directive .......

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

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European Asylum Support Office 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 European Court of Human Rights editor/editors European Economic Area European Economic Community 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 others et sequentes/following et sequentes/and the following et cetera 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 thirdcountry 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 (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) 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) 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) Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (OJ 2003 L 31/18) 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) European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union

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List of Abbreviations Frontex Regulation ................... 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) FYROM ...................................... Former Yugoslav Republic of Macedonia GAMM ....................................... Global Approach to Migration and Mobility GATS ........................................... General Agreement on Trade in Services GATT .......................................... General Agreement on Tariffs and Trade GC ................................................ General Court of the European Union (since 2009) GC ................................................ Grand Chamber GC ................................................ Geneva Convention Geneva Convention ................. Geneva Convention relating to the Status of Refugees of 28 July 1951 GLJ ............................................... German Law Journal HR Rev. ...................................... Human Rights Review HRC ............................................. Human Rights Committee Human Trafficking Council Directive 2004/81/EC of 29 April 2004 on the residence permit Directive ...................................... 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) i. e. ................................................ id est/that is/means ibid. .............................................. ibidem/in the same place/the same ICC .............................................. International Criminal Court ICC Statute ................................ (Rome) Statute of the International Criminal Court ICJ ................................................ International Court of Justice ICJ Statute .................................. Statute of the International Court of Justice ICT ............................................... intra-corporate transferee ICT Directive ............................. 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 (OJ 2014 L157/1) ICCPR ......................................... International Covenant on Civil and Political Rights ICESCR ....................................... International Covenant on Economic, Social and Cultural Rights ICLQ ............................................ International and Comparative Law Quarterly ICON ........................................... International Journal of Constitutional Law ICRC ............................................ International Committee of the Red Cross IJRL .............................................. International Journal of Refugee Law ILO ............................................... International Labour Organization IM Rev. ....................................... International Migration Review IMO ............................................. International Maritime Organization IO ................................................. International Organization IOM ............................................. International Organization for Migration ISCED ......................................... International Standard Classification of Education JCMSt. ......................................... Journal of Common Market Studies JRSt. ............................................. Journal of Refugee Studies lit. ................................................. litera/letter Long-Term Residents Council Directive 2003/109/EC of 25 November 2003 concerning the Directive ..................................... status of third-country nationals who are long-term residents (OJ 2004 L 16/44) with amendments (see the consolidated version of 2011). MBA ............................................ Master of business administration MN ............................................... margin number/note MoU ............................................ Memorandum of Understanding NGO ............................................ Non-Governmental Organisation no. ................................................ number OJ ................................................. Official Journal of the European Union OSCE ........................................... Organisation for Security and Cooperation in Europe OUP ............................................. Oxford University Press p./pp. ........................................... page/pages para. ............................................. paragraph paras ............................................ paragraphs Posted Workers Directive ....... 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 provision of services (OJ 1997 L 18/1)

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List of Abbreviations Rec. .............................................. Recommendation Researchers Directive .............. 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 L289/15) REV ............................................. revised Return Directive ....................... 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-country nationals (OJ 2008 L 348/98) SAR Convention ....................... International Convention on Maritime Search and Rescue (1979) Schengen Borders Code Regulation (EC) No. 562/2006 of the European Parliament and of the Regulation .................................. Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2006 L 105/1) Sea Borders Regulation ........... 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 at the External Borders of the Member States of the European Union (OJ 2014 L189/93) Seasonal Workers Directive ... 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). SEC .............................................. Commission Documents which cannot be classified in any of the other series sent. .............................................. sentence SIAC ............................................ Special Immigration Appeals Commission Single Permit Directive ........... 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) SIS ................................................ Schengen Information System Social Security Coordination Regulation (EC) No 883/2004 of the European Parliament and of the Regulation ................................... Council of 29 April 2004 on the coordination of social security system SOLAS Convention .................. Safety of Life at Sea Convention (1974) Students Directive .................... 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) TEC .............................................. Treaty establishing the European Community TEC (Nice version) .................. EC Treaty (as amended by the Treaty of Nice) TEC (Maastricht version) ....... EC Treaty (as amended by the Treaty of Maastricht) TEC (Amsterdam version) ..... EC Treaty (as amended by the Treaty of Amsterdam) Temporary Protection Direc- Council Directive 2001/55/EC of 20 July 2001 on minimum standards for tive ............................................... 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) TEU ............................................. Treaty on European Union TEU (Nice version) .................. EU Treaty (as amended by the Treaty of Nice) TEU (Maastricht version) ...... EU Treaty (as amended by the Treaty of Maastricht) TEU (Amsterdam version) .... EU Treaty (as amended by the Treaty of Amsterdam) TFEU ........................................... Treaty on the Functioning of the European Union UDHR ......................................... Universal Declaration of Human Rights UK ................................................ United Kingdom UN ............................................... United Nations UNCLOS .................................... United Nations Convention on the Law of the Sea (1982) UNHCR ...................................... United Nations High Commissioner for Refugees Visa Code Regulation .............. 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)

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List of Abbreviations Visa Regulation ......................... 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)

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PART A INTRODUCTION Constitutional Framework and Principles for Interpretation Selected Bibliography: Acosta Arcarazo/Murphy (eds), EU Security and Justice Law (Hart, 2014); Azoulai/de Vries (eds), EU Migration Law (OUP, 2014); Bast, Aufenthaltsrecht und Migrationssteuerung (Mohr Siebeck, 2011); Boeles/den Heijer/Lodder/Wouters, European Migration Law, 2nd edn (Intersentia, 2014); Costello, ‘Administrative Governance and the Europeanisation of Asylum and Immigration Policy’, in: Hofmann/Tu¨rk (eds), EU Administrative Governance (Elgar, 2006), p. 287–340; Craig, EU Administrative Law, 2nd edn (OUP, 2012); Groenendijk, ‘Recent Developments in EU Law on Migration: The Legislative Patchwork and the Court’s Approach’, EJML 16 (2014), p. 313–335; Guild/Minderhoud (eds), The First Decade of EU Migration and Asylum Law (Martinus Nijhoff, 2012); Hailbronner, Asylund Ausla¨nderrecht, 3rd edn (Kohlhammer, 2013); Hailbronner, Immigration and Asylum Law and Policy of the European Union (Kluwer, 2000); Monar, ‘The Area of Freedom, Security and Justice’, in: von Bogdandy/Bast (eds), Principles of European Constitutional Law, 2nd edn (Hart, 2009), p. 551–585; Pascouau, La politique migratoire de l’Union europe´enne (Fondation Varenne, 2011); Peers, EU Justice and Home Affairs Law, 3rd edn (OUP, 2011); Thym, ‘EU Migration Policy and its Constitutional Rationale’, CML Rev. 50 (2013), p. 709–736; Thym, Migrationsverwaltungsrecht (Mohr Siebeck, 2010); Walker (ed), Europe’s Area of Freedom, Security and Justice (Hart, 2004); Wiesbrock, Legal Migration to the European Union (Martinus Nijhoff, 2010).

Content 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 (Proportionality) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. More Favourable National Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Application in Domestic Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Territorial Scope (Member State Participation) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. United Kingdom and Ireland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Human Rights and International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. EU Charter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. European Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Geneva Convention and International Human Rights . . . . . . . . . . . . . . . . . . . 4. Other International Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 1 5 8 10 10 21 28 34 38 40 42 46 47 51 53 56

I. General Remarks 1. Evolution of the Treaty Regime EU immigration and asylum legislation is nowadays adopted on the basis of 1 Articles 77–80 TFEU. These provisions have been firmly embedded into the supranational legal order of the EU Treaties since the entry into force of the Treaty of Lisbon on 1 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 Hailbronner/Thym

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Part A

Introduction

framework. Informal cooperation existed since the early 1970s1 and was subsequently transformed into binding international treaties such as the original Schengen Agreement of 1985, the Schengen Implementing Convention of 1990 (see Thym, Legal Framework for Entry and Border Controls, MN 1) and the Dublin Convention of 1990.2 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 undemocratic3). These rules later became known as the ‘Schengen Acquis’ and formed the backbone of the 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 maintained decidedly 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), which would have to be ratified by national parliaments in line with established principles of public international law.4 These rules on intergovernmental justice and 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). 3 Since the entry into force of the Treaty of Amsterdam, the EU institutions have been 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. This was deemed necessary in order to take account of the political ‘sensitiveness’ of matters which had hitherto belonged to the core issues of

1 See Papagianni, Institutional and Policy Dynamics of EU Migration Law (Martinus Nijhoff, 2006), p. 3–16. 2 Dublin Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities of 15 December 2000 (OJ 1997 C 254/1). 3 See Curtin/Meijers, ‘The Principle of Open Government in Schengen and the European Union’, CML Rev. 32 (1995), p. 391–442; and, for improvements after the integration into the EU legal order, see Thym, ‘The Schengen Law: A Challenge for Legal Accountability in the European Union’, ELJ 8 (2002), p. 218, 221–233. 4 Cf. Article K.2(2) EU Treaty as amended by the Treaty of Maastricht of 7 February 1992 (OJ 1992 C 191/1). 5 See Hailbronner, Immigration and Asylum Law, p. 35–42; and Denza, The Intergovernmental Pillars of the European Union (OUP, 2002), ch. 6. 6 Cf. Articles 61–69 EC Treaty as amended by the Treaty of Amsterdam of 2 October 1997 (OJ 1997 C 340/173); on the negotiating history, see Guild, Guild, Immigration Law in the European Community (Martinus Nijhoff, 2001), p. 327–333.

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national sovereignty.7 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.8 The Treaty of Nice, which entered into force in 2003, extended today’s ordinary legislative procedure to some policy fields9 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.10 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’ has been gentrified; Articles 77–80 TFEU are part and parcel of the supranational integration method.11 The Treaty of Lisbon not only streamlined decision-making procedures, but also 4 broadened 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 conclusions on immigration and asylum retain full relevance, since they were later integrated in the Lisbon Treaty without major changes.12 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.13 The scope of EU competences on immigration and asylum 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 Hailbronner/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 5 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 7 See Walker, ‘In Search of the Area of Freedom, Security and Justice’, in: ibid. (ed), Europe’s Area, p. 3, 16–20; for a critical position, see Peers, EU Justice and Home Affairs Law, 1st edn (Longman, 2000), p. 2: ‘ghetto.’ 8 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. 9 Cf. Article 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). 10 See Decision 2004/927/EC (OJ 2004 L 396/45). 11 See Peers, EU Justice, p. 17–24. 12 Articles 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. 13 For detail, see Ladenburger/Verwirlghen, ‘Policies Relating to the Area of Freedom, Security and Justice’, in: Amato/Bribosia/de Witte (eds), Gene`se et destine´e de la Constitution europe´enne (Bruylant, 2007), p. 743-772; and Thym, The Area of Freedom, Security and Justice in the Treaty establishing a Constitution for Europe, WHI Paper 12/2004, http://www.whi-berlin.eu/documents/whi-paper1204.pdf [last accessed 13 November 2015].

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Entry and Border Controls, MN 3). Instead, immigration and asylum law has been reaffirmed as a self-sufficient policy field in its own right within the area of freedom, security and justice,14 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, thereby pushing the process of European integration into new directions, although it should be acknowledged that it was not immediately clear what exactly the ‘area of freedom, security and justice’ was actually meant to mean.15 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 of Union citizens. Instead, immigration and asylum law is nowadays 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’16 which command ‘compliance with the principle of nonrefoulement.’17 Generally speaking, ‘the efficient management of migration flows’18 is to be accompanied by ‘fair[ness] towards third-country nationals.’19 These objectives may be summarised under the heading of ‘migration governance’ – a choice of terminology recognising that the migration control perspective of state authorities must accommodate legitimate interests of migrants.20 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: 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, the extended legislative discretion is not absolute, since EU legislation on immigration and asylum must respect human rights (see below MN 46–55). 7 The EU legislature benefits from principled discretion when it comes to realising the Treaty objectives for immigration and asylum law. The EU institutions are bound to promote the Treaty objectives, even if the latter do not regularly translate into judiciable yardsticks for secondary legislation.21 In contrast to human rights (see below MN 46– 55), the Treaty objectives cannot usually be relied on in situations of judicial review in order to challenge EU legislation. Academics may criticise the predominance of securitarian approaches focusing on migration control,22 but such criticism remains inherently political as long as it does not fall foul of human rights standards. This principled discretion on the side of the legislature in realising the Treaty objectives is a general characteristic of Union law23 and is reaffirmed, within the context of the area 14 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). 15 See Monar, The Area of Freedom, p. 552–562. 16 Article 79(1) TFEU. 17 Article 78(1) TFEU. 18 Article 79(1) TFEU. 19 Article 67(2) TFEU; similarly, Article 79(1) TFEU; for the meaning of the different Treaty objectives see, again, Monar, The Area of Freedom, p. 552–562; and Costello, Administrative Governance, p. 289– 293. 20 See Thym, EU Migration Policy, p. 718–723. 21 Similarly, Thym, Migrationsverwaltungsrecht, p. 96–99; and Bast, Aufenthaltsrecht, p. 141–144. 22 By way of example, see Guiraudon, ‘European Integration and Migration Policy’, JCMS 38 (2000), p. 251–271; and Acosta Arcarazo/Martire, ‘Trapped in the Lobby: Europe’s Revolving Doors and the Other as Xenos’, EL Rev. 39 (2014), p. 362–379. 23 The same applies to the objectives in Article 3 TEU.

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of freedom, security and justice, by the inherent contradictions between different objectives.24 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 restrained rules on the access of lesser qualified migrants for as long as unemployment remains ubiquitous among Union citizens.25 The same applies to the objectives of external action, which include, among other things, the eradication of poverty in developing countries.26

3. Political Programming In the initial stages of EU legislative harmonisation, the grand design of the area of 8 freedom, security and justice established by the Treaty of Amsterdam (see above MN 6) was in need of an overarching rationale giving substance to the abstract notion of ‘freedom, security and justice’.27 This function was assumed by the programmes put forward by the European Council on the occasion of its meetings in Tampere (1999), The Hague (2004), Stockholm (2009) and Ypres (2014)28 and the intergovernmental 2008 Pact on Immigration and Asylum as an interlude.29 The theoretical underpinning of these programmes was met with criticism due to their lack of conceptual coherence across policy fields,30 but the various programmes served important functions from a political perspective. Throughout the years, the focus of attention shifted in response to wider political and social developments in Europe and beyond. While the initial Tampere Programme was full of youthful enthusiasm, The Hague Programme was dominated by the fight against terrorism and the Stockholm Programme made a deliberate effort to balance security and human rights concerns in light of the new provisions of the Treaty of Lisbon.31 By contrast, the Ypres Guidelines are noticeably shorter and comprise only a few paragraphs with little substantive guidance.32 The political programmes have therefore lost their practical impact; the earlier programmes, which have expired, can no longer be relied on. From a legal perspective, the guidelines are political in nature in the sense that the 9 institutions are free to deviate from their contents in the ordinary legislative proce24 It is the prerogative of the legislature to decide how to balance the ‘fair treatment’ of third-country nationals (Article 67(2) TFEU) and ‘enhanced measures to combat illegal immigration’ (Article 79(1) TFEU; emphasis added) short of human rights standards, which individuals can rely on in courts. 25 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. 26 Cf. Article 21(2) TEU, which can be used as a legal argument to prevent ‘brain-drain.’ 27 See Walker, ‘In Search of the Area of Freedom, Security and Justice’, in: ibid. (ed), Europe’s Area, p. 3, 5–10. 28 See the initial ‘Vienna Action Plan’ (OJ 1999 C 19/1); European Council, Presidency Conclusions of the Meeting on 15/16 October 1999 in Tampere; The Hague Programme Strengthening Freedom, Security and Justice in the European Union (OJ 2005 C 53/1); The Stockholm Programme: An Open and Secure Europe Serving and Protecting the Citizens, adopted by the European Council on 11 Dec. 2009 (OJ 2010 C 115/1); and European Council, Conclusions of the Meeting on 26/27 June 2014 in Ypres, doc. EUCO 79/14, paras 1–13. 29 See Council doc. 13440/08 of 24 September 2008, which was spearheaded by France, Germany and the United Kingdom and reinvigorated the European debate. Ithas been 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. 30 By way of example, see Monar, The Area of Freedom, p. 556–561. 31 For an overview, see Murphy/Acosta Arcarazo, ‘Rethinking Europe’s Freedom, Security and Justice’, in: ibid. (eds), EU Security, p. 1, 4–9. 32 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.

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dure.33 Doctrinally, the political programmes are therefore less relevant than the Treaty objectives introduced by the Treaty of Lisbon, which leave considerable discretion to the EU institutions but are nonetheless binding on them as a matter of principle (see above MN 7). The limited legal weight of the political programmes does not detract from their political significance; guidance from heads of state or government often supported the realisation of the area of freedom, security and justice when the European Council ‘urged’ hesitant interior ministers to ‘speed-up’ legislation.34 More recently, however, their impact has gone into a sharp decline. In noticeable contrast to the extensive prescriptions in earlier programmes, the Ypres Guidelines adopted in June 2014 are limited to general declarations of intent.35 This 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. Political programming has lost its relevance.

II. Overarching Principles 1. Interpretation of EU Legislation Immigration and asylum regulations and directives are interpreted according to the same principles that apply to secondary EU legislation in other areas. This implies that the established principles of legislative interpretation apply, in particular those derived from continental civil law jurisdictions by the ECJ.36 In line with established case law, the supranational EU legal order has created its own legal system and is not subject to the interpretative principles of public international law.37 Generally speaking, secondary legislation must therefore be interpreted in the light of the wording, the systemic structure (general scheme), the drafting history, the objectives and 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).38 This commentary explores the interpretation of EU immigration and asylum law on the basis of these interpretative principles including in situations where there is currently no ECJ case law on a specific question. 11 It should be noted that contextual factors can complicate the straightforward operationalisation 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 con10

33 Article 68 TFEU on ‘strategic guidelines for legislative and operational planning’ by the European Council does not detract from the political discretion of the Parliament, the Commission and the Council in the ordinary legislative procedure, which applies to the adoption of measures on the basis of Articles 77(2), 78(2) and 79(2) TFEU and during which they may decide not to follow the European Council. 34 See, e. g., the Seville European Council of 21/22 June 2002, Presidency Conclusions, para 37; see also Papagianni, Institutional and Policy Dynamics of EU Migration Law (Martinus Nijhoff, 2006), p. 215–220. 35 The reason may be a dispute between the Council and the Commission on the implementation of the Stockholm Programme described by 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. 36 See van Gestel/Micklitz, ‘Why Methods Matter in European Legal Scholarship’, ELJ 20 (2014), p. 292–316. 37 Cf. ECJ, Costa/E.N.E.L, 6/64, 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 of Treaties. 38 Generally on the interpretation of EU law, see Itzcovich, ‘The Interpretation of Community Law by the European Court of Justice’, GLJ 10 (2009), p. 537–561.

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structed over the years.39 Moreover, 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.40 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.41 We should therefore apply the interpretative standards of EU immigration and asylum law in full awareness of the underlying supranational characteristics. In so doing, academics and judges should make an effort to build bridges between transnational debates (in English) and the enduring domestic discussions within the Member States in the respective national languages,42 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.43 While the Court of Justice has acquired a certain celebrity for dynamic interpreta- 12 tion, it should be noted that the most notorious examples of dynamic interpretation concerned essential Treaty concepts, such as 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 direction, since Treaty rules on the area of freedom, security and justice embrace diverse and occasionally conflicting objectives (see above MN 6–7). It is convincing, therefore, that the ECJ exhibits more sensitivity towards the choices of the EU legislature in areas where the EU Treaty awards the EU institutions a greater level of discretion. In the case law on immigration and asylum regulations and directives, there is a noticeable number of judgments developing their conclusion under recourse to the wording, general theme, objectives and other interpretative principles mentioned above.44 This confirms that the Court’s approach towards secondary legislation is more conservative, from a methodological perspective, than towards Treaty law. The legislature holds the primary responsibility to offset the framework for EU immigration and asylum law in the ordinary legislative procedure on the basis of Articles 77–80 TFEU. Questions of interpretation frequently arise with regard to the drafting history of a 13 directive or regulation. In its earlier case law, the Court had generally attributed limited importance to the legislative history;45 even common interpretative declarations of the Member States on the occasion of the adoption were considered irrelevant, with the Court relying on the primary importance of the fundamental freedoms,46 which realise the central Treaty concepts of the single market and Union citizenship (see above MN 39 On the relative doctrinal weakness of EU law, see Poiares Maduro, ‘Interpreting European Law’, Eur. J. Legal Stud. 2 (2007), Issue 2, p. 1, 9–10; and von Danwitz, ‘Funktionsbedingungen der Rechtsprechung des Europa¨ischen Gerichtshofs’, Europarecht 2008, p. 769, 780–782. 40 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. 41 See Hecker, ‘Zur Europa ¨isierung des Ausla¨nderrechts’, Zeitschrift fu¨r Ausla¨nderrecht 2011, p. 46, 48–49. 42 See Thym, The Solitude of European Law Made in Germany, Verfassungsblog.de on 29 May 2014, http://www.verfassungsblog.de/en/die-einsamkeit-des-deutschsprachigen-europarechts [last accessed 16 November 2015]. 43 Not least since the United Kingdom and Ireland do not participate in many immigration and asylum law initiatives; see below MN 42–45. 44 For border controls and visas, see ECJ, Koushkaki, C-84/12, EU:C:2013:862; for immigration, see ECJ, Tahir, C-469/13, EU:C:2014:2094; and for asylum, see ECJ, Bolbol, C-31/09, EU:C:2010:351. 45 See Wendel, ‘Renaissance der historischen Auslegungsmethode?’, Zeitschrift fu ¨ r ausla¨ndisches o¨ffentliches Recht und Vo¨lkerrecht/Heidelberg Journal of International Law 68 (2008), p. 803, 807–811. 46 See, in the context of the free movement of EU citizens (not: third-country nationals), ECJ, Antonissen, C-292/89, EU:C:1991:80, paras 17–18.

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12). In the area of freedom, security and justice, this technique cannot usually be employed. The Court should take the drafting history more seriously, not least since the information on the position of the various actors is now easily accessible through the Eur-Lex portal of the EU institutions.47 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.48 Article 52(7) of the Charter expressly obliges judges at national and European level to give due regard to the official explanations.49 14 In the field of asylum and immigration, human rights and international legal 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 the 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 enshrined in Article 78(1) TFEU (see Hailbronner/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 rights,50 as the ECJ has reaffirmed in a number of cases on immigration and asylum.51 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 of secondary legislation (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.52 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,53 which may entail that the assessment of national laws 47 In the ‘procedure’ section, the Eur-Lex portal offers detailed information for each legislative act, which may be identified through the search form for the ‘document reference’ (see http://eur-lex.europa.eu/advanced-search-form.html) or for the corresponding preparatory COM document (see http:// eur-lex.europa.eu/collection/eu-law/pre-acts.html; both accessed last on 24 November 2015) by opening the subsection on ‘procedure’. 48 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/documents-publications/intergovernmental-conferences [both accessed last on 24 November 2015]; for further reflection, see Craig, ‘The Detailed Mandate and the Future Methods of Interpretation of the Treaties’, in: Pernice/Tanchev (eds), Ceci n’est pas une Constitution – Constitutionalisation without a Constitution? (Nomos, 2008), p. 86–98. 49 See the Explanations Relating to the Charter of Fundamental Rights (OJ 2007 C 303/17). 50 Similarly, Groenendijk, Recent Developments, p. 330; and Groß, ‘Europa ¨ische Grundrechte als Vorgaben fu¨r das Einwanderungs- und Asylrecht’, Kritische Justiz 2001, p. 100–111. 51 Cf., by way of example, ECJ, O & S, C-356/11 & C-357/11, EU:C:2012:776, paras 76–78; ECJ, Kamberaj, C-571/10, EU:C:2012:233, para 34; and ECJ, X, Y & Z, C-199/12 & C-200/12, EU:C:2013:720, para 40. 52 Cf., by way of example, the silence on Article 8 ECHR in 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. 1, 6–7. 53 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 Judges (Hart, 2013), p. 155–174.

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beyond the scope of EU 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. For historic reasons, the concept of direct effect and the related category of individual 15 rights play a prominent role in the interpretation of Union law by the ECJ.54 Judges recognise that migrants may have individual rights emanating from EU legislation55 and that, in addition, exceptions to individual rights should be narrowly construed.56 On this basis, the position of migrants can be advanced through a methodology of rights-based interpretation,57 whose outcome should reflect the broader constitutional context. In contrast to the single market and EU citizenship (see below MN 20), the individual rights of third-country nationals in immigration and asylum legislation do not usually flow directly from rights to cross-border movement with constitutional status.58 Human rights, in particular, do not typically comprise a guarantee for migrants to be granted access to the European territory in the field of legal migration (see Thym, Legal Framework for EU Immigration Law, MN 51). This implies that individual rights granted by the EU legislature can go beyond the level of protection prescribed by human rights, as the ECJ explicitly recognised in the case of family reunification.59 When deciding on the scope of the statutory rights of migrants beyond the human rights requirement, the EU legislature determines the conditions and limits set forth in legislative instruments. Judges should generally respect these legislative choices, especially if secondary legislation provides for discretion on the side of national authorities in the application of statutory requirements for individual rights.60 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 10–12). EU law experts are well aware of the fact that the ECJ frequently activates the 16 principle of effet utile, which aims at the effective application of EU law in domestic legal orders and which is usually applied in conjunction with teleological interpretation promoting the objectives of supranational rules (see below MN 17). Unsurprisingly, the Court also activated the principle of effet utile in immigration and asylum law, for instance by preventing Member States from charging prohibitive fees that might render the realisation of statutory rights of migrants practically ineffective.61 While the effet utile can work to the benefit of migrants, it is not intrinsically linked to this scenario, since it aims to promote the effectiveness of Union law as an end in itself. The advancement of individual rights on the basis of the effet utile concept by judges in Luxembourg has been essentially functional in order to promote the broader integration process;62 if EU law pursues different objectives, the effet utile may direct interpretation 54

See Bast, Aufenthaltsrecht, p. 101–111. By way of example, see ECJ, Chakroun, C-578/08, EU:C:2010:117, para 41. 56 Ibid, para 43. 57 See 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. 58 For further reading, see Thym, Constitutional Rationale, p. 718–721. 59 See ECJ, Parliament vs. Council, C-540/03, EU:C:2006:429, paras 59–60. 60 See, by way of example, in the field of visas ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 56–62; and for students ECJ, Ben Alaya, C-491/13, EU:C:2014:2187, paras 23–27, 33; in the German language version, the Court refers to a ‘Beurteilungsspielraum’ (not: ‘Ermessen’), thereby emphasising that the discretion concerns the conditions under which individual rights come about. 61 See ECJ, Chakroun, C-578/08, EU:C:2010:117, para 43; and ECJ, Commission vs. Netherlands, C-508/ 10, EU:C:2012:243, para 65. 62 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. 55

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in other directions. Thus, the ECJ emphasised that the Return Directive 2008/115/EC aims to establish an effective policy of removal and repatriation of illegally staying foreigners63 and that asylum seekers cannot benefit from individual rights under the former Dublin II Regulation (EC) No 343/2003 in situations that are not prescribed by human rights in light of, among other things, the general scheme and objective of said Regulation.64 Essentially, the objectives to be promoted by the effet utile principle should be determined by means of statutory interpretation; they are dependent on the content and context. 17 Unfortunately, the ECJ can be superfluous when identifying the aims pursued by the EU legislature in the adoption of immigration and asylum rules. It has fluctuated, for instance, when identifying the main objective behind the Dublin Regulations between the identification of the Member States responsible for examining an asylum application65 and effective access by individuals to the asylum procedure66 (both objectives should probably be considered to underlie the Regulation in parallel). Similarly, the Family Reunification Directive 2003/86/EC has been generally deemed to promote family reunification,67 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).68 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 that is inherent to interpreting of the concept of ‘integration’ lurking behind the seemingly well-defined objective identified by the Court (see Thym, Legal Framework for EU Immigration Policy, MN 43–47). Likewise, it can be treacherous to rely solely upon abstract formulations of a particular recital, since closer inspection of the recitals in the light of the drafting history (see above MN 13) will often expose that specific legislative acts pursue diverse and potentially conflicting objectives which reflect the diversity of opinions among the various participants in the legislative process in a democratic and pluralistic society.69 In such scenarios, courts should discuss the plurality of objectives openly and address them, where appropriate, in the balancing exercise that underlies proportionality sensu stricto, whose outcome is determined by the relative weight of the objectives and interests at stake (see below MN 26). 18 It is not surprising that the ECJ supports the coherence of the supranational legal order by interpreting similar terms in an identical fashion whenever appropriate. This may entail that doctrinal concepts developed for other segments of Union law are applied to immigration and asylum instruments,70 such as the concept of ‘abuse’, which was first developed for the field of economic market regulation (see Thym, Legal Framework for EU Immigration Policy, MN 48–49). However, such parallel interpretation of similar terminology is no foregone conclusion and depends on the context of the statutory rule under consideration. Occasionally, the legislature may expressly define certain concepts for the purpose of the specific legislative instruments.71 In other 63

See ECJ, El Dridi, C-61/11 PPU, EU:C:2011:268, para 59. See ECJ, Abdullahi, C-394/12, EU:C:2013:813, paras 51–59; the reasoning applies to the Dublin III Regulation (EU) No 604/2013 mutatis mutandi. 65 Cf. ECJ, Kastrati, C-620/10, EU:C:2012:265, para 52. 66 Cf. ECJ, MA et al., C-648/11, EU:C:2013:367, para 54. 67 ECJ, Chakroun, C-578/08, EU:C:2010:117, para 43. 68 ECJ, Noorzia, C-338/13, EU:C:2014:2092, para 16. 69 To pursue diverse and potentially conflicting aims is a hallmark of open democratic discourse, not a pathology. 70 See Groenendijk, Recent Developments, p. 329; and Jesse, ‘The Value of “Integration” in European Law’, ELJ 27 (2011), p. 172–189. 71 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. 64

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scenarios, consideration of the general theme and the objectives of the legislative acts in question may result in the conclusion that identical terms have a different meaning in different instruments.72 It therefore has to be ascertained, in line with general interpretative criteria (see above MN 10–12), whether and, if so, to what extent, different legislative acts may be interpreted in parallel. The example of the ECJ case law on the Association Agreement between the EEC and 19 Turkey and related Decisions of the Association Council which are often relied on as a harbinger of dynamic interpretation of similar terminology,73 demonstrates both the potential and the limits of parallel interpretation. The ‘so far as is possible’74 formula employed by the ECJ reflects the wording of the Association Agreement with Turkey which stipulates explicitly that rules on Turkish citizens should be approximated to the economic freedoms in the single market.75 This implies, in turn, that parallel interpretation ends where the objectives and the general scheme of Union law and the Association Agreement diverge; the ‘so far as is possible’ formula is inherently open-ended and ultimately depends on the context76 – in a similar vein as the comparability of secondary legislation on immigration and asylum with other policy area has to be determined on a case-by-case basis (see above MN 18). In practice, this dependence on the context of the EEC-Turkey Agreement entailed that even identically formulated provisions, such as the concept of public policy as a limit to free movement guarantees,77 have to be interpreted differently if the objectives and the general scheme do not support interpretative convergence.78 The considerations above demonstrate that it is a general feature of EU immigration 20 and 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.79 There is no legal expectation enshrined at Treaty level that third-country nationals and Union citizens should have similar 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 72 See, by way of example, the divergent interpretation of the term ‘worker’ and ‘social assistance’ in the context 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. 73 See Barbou des Places, ‘Droit communautaire de la liberte ´ de circulation et droit des migrations’, in: L’Union europe´enne: Union de droit, Union des droits. Me´langes en l’honneur de 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. 74 ECJ, Bozkurt, C-434/93, EU:C:1995:168, para 20. 75 See the Preamble and Article 12 Agreement Establishing an Association between the European Economic Community and Turkey of 12 September 1963 (OJ 1977 L 361/1). 76 See Hailbronner, ‘Einreise und Aufenthalt tu ¨ rkischer Staatsangeho¨riger im Assoziationsrecht EWGTu¨rkei’, Zeitschrift fu¨r Ausla¨nderrecht 2011, p. 322, 324. 77 For a distinction between EU rules and the Association Agreement with regard to the public policy exception, see ECJ, Ziebell, C-371/08, EU:C:2011:809; similarly, for the standstill provision in the Additional Protocol to the said Agreement, see ECJ, Demirkan, C-221/11, EU:C:2013:583. 78 For further reading, see Thym, ‘Constitutional Foundations of the Judgments on the EEC-Turkey Association Agreement’, in: ibid./Zoeteweij Turhan (eds), Rights of Third-Country Nationals under EU Association Agreements. Degrees of Free Movement and Citizenship (Martinus Nijhoff, 2015), p. 13–38. 79 Such predictions usually rely on the abstract recognition that proportionality applies in both scenarios without considering the constitutional context; see, by way of example, Groenendijk, Recent Developments, p. 330–332; Wiesbrock, ‘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.

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MN 15). Judges in Luxembourg have repeatedly recognised that ‘a particularly restrictive interpretation’80 of derogations of the rights of Union citizens was required in the light of EU primary law.81 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.

2. General Principles (Proportionality) The supranational legal order comprises a number of unwritten general principles, 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.82 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 in order to interpret the measures adopted by the EU institutions and, in exceptional circumstances, serve as grounds for judicial review.83 Moreover, the general principles bind Member States when implementing Union law, i. e. state authorities and domestic courts must respect the general principles when they adopt decisions or render judgments whose outcome is determined by EU law, thereby influencing the interpretation of domestic law. As we shall go on to discuss, the extent to which Member States must respect the general principles when they have implementing discretion remains unclear (see below MN 47–48). Whenever Member States are not bound by general principles, they apply only national standards, including domestic constitutional guarantees. A narrow reading of the scope of the general principles does not leave migrants without legal protection. 22 From a conceptual perspective, the general principles underline that EU immigration and asylum law is firmly embedded into the rule of law. Traditional notions of migration law and alienation as an exclave of legal protection, which prevailed in some Member States until recently, cannot be maintained.84 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 interpret EU directives and regulations. Unexpected legal effects flowing from the interpretation of secondary law in light of general principles are a common phenomenon.85 Judges in Luxembourg have developed a certain celebrity for dynamic interpretation, in particular with regard to Primary law – although there are indications that judges take the wording, the structure and the drafting history of immigration and asylum law instruments seriously (see above MN 12). 21

80

By way of example, see ECJ, Orfanopoulos & Olivieri, C-482/01 & C-493/01, EU:C:2004:262, para 65. See also, Thym, Constitutional Rationale, p. 718–721. 82 For further reading, see Tridimas, The General Principles of EC Law, 2nd edn (OUP, 2007). 83 On the hierarchical superiority of the general principles in situations of judicial review, see ECJ, Audiolux, C-101/08, EU:C:2009:626, para 63. 84 Cf. Thym, Migrationsverwaltungsrecht, p. 198–211; and Groenendijk, ‘Citizens and Third Country Nationals’, in: Carlier/Guild (eds), L’avenir de la libre circulation des personnes dans l’U. E. (Bruylant, 2006), p. 79, 98–100. 85 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 Europa¨isierung des Ausla¨nder- und Asylrechts’, Zeitschrift fu¨r Ausla¨nderrecht 2006, p. 1, 6–7. 81

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Acknowledging the significance of the general principles for the dynamic interpreta- 23 tion of EU migration law by the Court of Justice does not imply that they will always vindicate the position of those that criticise national legal practices. Rather, the precise meaning of the unwritten general principles has to be ascertained on a case-by-case basis. This exercise usually requires a thorough analysis of ECJ case law by consulting, for instance, general treatises on EU administrative law.86 On this basis, one may determine what the general principles require for each case. In terms of substance, human rights have traditionally been the most relevant general principles, although the legally binding Charter of Fundamental Rights means that they are now 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.87 Other principles include legitimate expectations and legal certainty88 or damages Member States may have to pay to individuals for manifestly and gravely disrespecting their obligations under EU law.89 General principles relating to the right to defence and judicial protection will be discussed below (see below MN 37). Besides human rights, primacy and direct effect, the principle of proportionality is the 24 most relevant general principle for asylum and immigration law. In EU law, the principle of proportionality has a dual relevance: it both serves as a yardstick for the delimitation of EU competences90 and defines the limits of state action affecting individuals.91 It is the second scenario that is especially relevant in the field of immigration and asylum. Generally speaking, an application of the principle of proportionality requires a four-pronged test: firstly, the state measure affecting individuals must pursue a legitimate aim; secondly, the measure must be suitable for achieving its 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).92 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 any assessment of proportionality is based on 25 objective standards but nevertheless depends on the circumstances of each individual case. The abstract criteria of the four-pronged test described above require an assessment focusing on the measure in question and its effect in a specific societal 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 grant the legislature and/or administrative authorities a margin of appreciation when assessing the suit-

86 See, in particular, Craig, Administrative Law, chs 15–21; and Tridimas, The General Principles of EC Law, 2nd edn (OUP, 2007). 87 Cf. any textbook on EU law. 88 See Craig, Administrative Law, ch. 18; and Wiesbrock, Legal Migration, p. 189–192. 89 Cf. ECJ, Brasserie du pe ˆcheur & Factortame, C-46/93 & C-48/93, EU:C:1996:79 and any textbook on EU law. 90 I.e. the definition of the scope of EU powers in line with Article 5(4) TEU. 91 In contrast to the German legal order, from which the ECJ derived the principle of proportionality, its application is not limited to situations of state interference with individual rights; the ECJ tends to apply proportionality as a limit to state power also in situations that do not involve interference with individual rights. 92 For details, see Tridimas, The General Principles of EC Law, 2nd edn (OUP, 2007), ch. 3.

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ability, necessity or proportionality sensu stricto of the measure in question,93 in particular in areas where courts lack information or expertise and where broader value judgments have to be made.94 The argument in favour of discretion is particularly strong in areas without strict legal standards, such as the promotion of social integration (see Thym, Legal Framework for EU Immigration Policy, MN 43–47). 26 In the evaluation of specific scenarios, it is necessary to clearly identify both the objective(s) pursued by the state measures and the individual interest(s) at stake. Without careful identification of the objectives and interests, the eventual balancing exercise in the final proportionality assessment sensu stricto runs the risk of being unpersuasive, since the outcome depends on the relative weight of public policy objectives and private interests. Unfortunately, the ECJ can be superfluous in the identification of the aim pursued by the EU legislature – a problem that also affects the operationalisation of the principle of effet utile, for instance with regard to the Dublin Regulations, the Long-Term Residents Directive 2003/109/EC and the Family Reunification Directive 2003/86/EC (see above MN 17). With regard to the Visa Code Regulation (EC) No 810/2009, judges similarly highlighted the dual objective of facilitating legitimate travel and of preventing ‘visa shopping.’95 In such scenarios, judges should discuss the plurality of objectives openly and address them in the balancing exercise that underlies proportionality sensu stricto by adjusting the relative weight of the public policy objective(s) and private interest(s) involved. The test’s dependence on context is one explanation as to why proportionality and related interpretative standards will not necessarily confer equal rights as Union citizens on third-country nationals, since the former benefit from a special position under EU primary law that cannot be extended to immigration and asylum (see above MN 20). 27 The ECJ has regularly taken recourse to general principles of Union law in order 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, the Court should indeed provide the necessary interpretative guidance required by domestic courts to determine whether national rules are compatible with Union law. Therefore, the observance of general principles of Union law cannot be made conditional, in the eyes of the Court, upon the expiry of the period allowed for the transposition of a directive.96 In cases within their jurisdiction, national courts have to interpret domestic law in line with Union law and its general principles. While this obligation is most relevant after the expiry of the transposition period, national courts are obliged, nonetheless, 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.97

3. More Favourable National Provisions 28

Most directives on immigration and asylum contain an express provision stating that the directive shall not affect the possibilities of the Member States to introduce or retain more favourable provisions – a discretion which most instruments adopted in recent 93 For the ECJ practice in the light of constitutional theory, see Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’, ELJ 17 (2011), p. 80, 85–100. 94 For the differentiated ECJ approach to the principle of equality, see Croon, ‘Comparative Institutional Analysis, the European Court of Justice and the General Principle of Non-Discrimination-orAlternative Tales on Equality’, ELJ 19 (2013), 153–173. 95 See ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 52–53. 96 Cf. ECJ, Mangold, C-144/04, EU:C:2005:709. 97 See ECJ, Adeneler, C-212/04, EU:C:2006:443, paras 113–123, in part. 123.

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years qualify to be limited ‘insofar as these [national rules] are compatible with this Directive.’98 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,99 although the precise scope of national discretion 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 more specific prescription in individual directives, Member States cannot deviate from common rules on the basis of generic clauses on more favourable rules whenever the relevant provision of the instrument in question opts for full harmonisation. Before the entry into force of the Treaty of Lisbon, the Treaty base for most asylum 29 instruments allowed for the adoption of ‘minimum standards’ only, while rules on immigration, border controls and visas had not been subject to a similar restriction.100 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 legislation.101 It is no longer relevant whether this position was correct, since the Treaty of Lisbon abandoned the restrictive Treaty base, thereby permitting a higher degree of harmonisation (see above MN 3–4). On this basis, new legislation on asylum has been adopted in the meantime allowing for more favourable national rules only insofar as they are compatible with the relevant directive.102 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.103 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. In order to understand the relevance of the EU law provisions on more favourable 30 national treatment, it is important to point out that the concept of harmonisation is central to the European project, since it entails the approximation of national rules in line with the overarching objective of establishing an ‘ever closer union,’104 in which differences between Member States are replaced by common standards – in line with the more specific objective of a common immigration and asylum policy in Articles 78– 79 TFEU. Tellingly, regulations on immigration and asylum, such as the Schengen Borders Code, the Dublin III Regulation or the Visa Regulation, contain no provision

98

By way of example, see Article 5 Asylum Procedure Directive 2013/32/EU. See Peers, EU Justice, p. 509. 100 Contrast the Treaty bases for asylum in Article 63(1)(a)–(c) and 63(2) EC Treaty as amended by the Treaty of Nice (OJ 2006 C 321E/5) with rules for immigration in Article 63(3) and for border controls and visas in Article 62 EC Treaty. 101 Cf. Storey, Hugo: EU Refugee Qualification Directive: A Brave New World?, IJRL 20 (2008), p. 1, 16–22; and Lambert, ‘The EU Asylum Qualification Directive, Its Impact on the Jurisprudence of the United Kingdom and International Law’, ICLQ 55 (2006), p. 161–191. 102 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 III Regulation (EU) No 604/2013 contains, like all regulations on immigration and asylum (see below MN 30), no provision on more favourable national treatment. 103 See also Peers, EU Justice, p. 308. 104 Recital 1 of the Treaty on the Functioning of the European Union. 99

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authorising Member States to adopt more favourable provisions.105 Unlike international human rights law,106 EU 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.107 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 example of consumer protection illustrates how national deviations are addressed by the ECJ.108 The Court of Justice establishes on a case-by-case basis whether individual articles in secondary legislation result in complete (full) harmonisation, which pre-empts national deviations as a uniform standard, while rules that are more favourable are allowed in other scenarios as long as they do not compromise the effective and uniform application of the EU rules in question.109 Whether an article grants Member States discretion depends on an interpretation of the provision taking into account 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 and, by contrast, 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 differences. One may conclude by means of interpretation, for example, that Member States ‘may’ choose between solution A and B, while solution C would violate the directive, since it would involve going beyond state discretion.110 With regard to the Schengen Borders Code and the Visa Code, the Court found explicitly that the objective of common standards within the Schengen area argues against Member States’ discretion.111 In short, the definite scope for possible deviations must be ascertained on a caseby-case basis when interpreting EU legislation. 32 As mentioned at the outset, the formulation of EU immigration and asylum directives follows different patterns. Three clauses on more favourable national provisions can be distinguished: (1) Most directives permit for national deviations only ‘insofar as [they]

105 In line with Article 288 TFEU, regulations are – unlike directives – meant to be applied directly, thereby establishing a higher degree of harmonisation. 106 Cf. 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 uniformity in EU law. 107 Cf. de Witte, ‘Direct Effect, Primacy and the Nature of the Legal Order’, in: Craig/de Bu ´ rca (eds), The Evolution of EU Law, 2nd edn (OUP, 2011), p. 323–362. 108 Like migration law, consumer protection is a policy field in which more protection to the benefit of the allegedly weaker party (migrant, consumer) is often considered to be an end in itself but which nevertheless does not necessarily permit more favourable national provisions. 109 See Loos, Full harmonisation as a regulatory concept and its consequences for the national legal orders, Centre for the Study of European Contract Law Working Paper Series No. 2010/03; the contributions to Stu¨rner (ed), Vollharmonisierung im Europa¨ischen Verbraucherrecht? (Sellier, 2010); and Whittaker, ‘Unfair Terms and Consumer Guarantees’, European Review of Contract Law 5 (2009), p. 223–247. 110 Interpretation in the light of the broader context can even indicate that ‘may’ means ‘shall’ or that Member States have only a binary choice (not) to do a certain thing; cf. the opinion of the Council legal service on the Draft Asylum Qualification Directive in Council doc. 14348/02 of 15 November 2002. 111 For visas, see ECJ, Koushkaki, 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.

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are compatible with this Directive;’112 these provisions require an assessment on a caseby-case basis as to whether specific articles allow for flexibility in line with the interpretative principles above. (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.113 (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.114 The Family Reunion 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 Reunion Directive and the Long-Term Residents 33 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 Hailbronner/Are´valo, Directive 2003/86/EC Article 3 MN 20–24) 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 clear distinction … between national protection and protection under the directive.’115 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.116 In short, the precise space for national deviations depends upon EU law; if new directives are adopted, Member States may lose room for manoeuvre they had held previously.

4. Application in Domestic Law Regulations such as the Dublin III Regulation or the Schengen Borders Code are by 34 their very nature directly applicable in domestic legal systems and are therefore binding on all national authorities and courts applying EU immigration and asylum law, whereas directives must be transposed into national law before they may be invoked before national courts as a matter of principle.117 In contrast to regulations, directives often leave some discretion to Member States as to how to regulate certain questions, although the precise scope of flexibility depends on the interpretation of the instrument in question (see above MN 31).118 It is well established in ECJ case law that directives 112 See, the new asylum directives mentioned above MN 29; Article 4(3) Return Directive 2008/115/EC; and Art. 15 Employer Sanctions Directive 2009/52/EC. 113 Cf. Article 4(2) Blue Card Directive 2009/50/EC; Article 4(2) Seasonal Workers Directive 2014/36/ EU; and Article 4(2) ICT Directive 2014/66/EU. 114 See Article 4(2) Researcher Directive 2005/71/EC; Article 4(2) Student Directive 2004/114/EC; and Article 13(2) Procedures Directive 2011/98/EU. 115 See ECJ, B., C-57/09 & 101/09, EU:C:2010:661, para 120. 116 Cf. ECJ, M’Bodj, C-542/13, EU:C:2014:2452, paras 42–46. 117 Cf. Article 288 TFEU. 118 In practice, the distinction between regulations and directives is not always clear-cut, if some regulations call upon Member States to adopt implementing rules (see Article 2(n) Dublin III Regulation (EU) No 604/2013), whereas some directives are almost as specific and detailed as regulations.

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can also be directly applicable if they have not been implemented correctly by the Member States during the transposition period, if the provision in question is clear, precise and unconditional and it seeks to confer rights upon individuals against the state.119 Moreover, domestic courts are bound to interpret national law, so far as possible, in light of the directive in order to achieve the result sought by the EU legislature, including in situations when the conditions for direct effect have not been met.120 In these cases, a directive may be indirectly relied upon. 35 EU law concentrates on the legislative harmonisation of substantive rules and corresponding procedural guarantees, while the actual application of supranational 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,121 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.122 There are also examples of enhanced transnational cooperation, in particular through the FRONTEX border agency and the European Asylum Support Office (EASO). These prototypes for transnational cooperation focus on convergence rather than the direct application of the EU asylum and immigration acquis towards individuals following a quasi-federal model. While EU primary law permits and supports closer transnational cooperation, it does not at present sanction the move towards a quasi-federal bureaucracy replacing national authorities in the day-to-day decision-making on migration issues (see Thym, Legal Framework for Entry and Border Controls, MN 7). 36 When adjudicating on individual cases, Member States apply their own domestic rules on administrative and judicial procedure unless there are more specific procedural rules in secondary legislation.123 EU immigration and asylum legislation contains numerous provisions on procedural aspects, 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.’124 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 principle of procedural autonomy.125 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 domestic actions (principle of equivalence) and, secondly, that they do not render the exercise of rights conferred by Community law practically impossible or excessively difficult (principle of effectiveness).126 The principle of effectiveness, in particular, is See Craig/de Bu´rca, EU Law, 5th edn (OUP, 2011), ch. 4. Cf. ECJ, Pfeiffer, C-397/01-C-403/01, EU:C:2004:584, paras 110–119. 121 See Costello, Administrative Governance, p. 322; and Walker, ‘In Search of the Area of Freedom, Security and Justice’, in: ibid. (ed), Europe’s Area, p. 3, 20–23. 122 See Thym, Migrationsverwaltungsrecht, p. 347–352. 123 See von Danwitz, Europa ¨ isches Verwaltungsrecht (Springer, 2008), p. 302–312. 124 Article 46(4) Asylum Procedure Directive 2013/32/EU concerning judicial action against the rejection of an asylum application. 125 See Craig, Administrative Law, ch. 23. 126 See ECJ, Rewe vs. Landwirtschaftskammer fu ¨ r das Saarland, 33/76, EU:C:1976:188, para 5. 119 120

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often used by the ECJ to limit the discretion of Member States, although its operationalisation in practice remains inherently difficult to predict.127 National rules on administrative and judicial procedure must comply not only with 37 specific rules in EU legislation and the limits to the principle of procedural autonomy (see above MN 35–36) but also with the Charter of Fundamental Rights, which binds Member States whenever they are implementing Union law (see below MN 47–48). In this respect, the right to effective judicial protection in Article 47 of the Charter plays a central role, since it is often relied upon to challenge restrictive national provisos.128 ECJ judges have made clear that Article 47 of the Charter applies in these instances, although the case law also emphasises that the special circumstances of asylum procedures can be taken into account, for instance through short time limits;129 similarly, the Charter does not require either automatic suspensive effect or the guarantee to remain in the territory pending proceedings.130 In short, the precise contents of procedural human rights must be analysed carefully taking into account supranational and international case law.131 The same applies to the human rights guarantees for administrative procedure in Articles 41–42 of the Charter, which can be applied within domestic legal orders as general principles of Union law.132 The relevance of these supranational guarantees will also be dependent upon the state of affairs in domestic legal orders: Member States with sophisticated procedural guarantees will be less affected than countries with limited options for judicial review.

III. Territorial Scope (Member State Participation) Mirroring the asymmetrical composition of the intergovernmental Schengen Agree- 38 ment, EU immigration and asylum law contains country-specific opt-outs to this date. More specifically, we need to distinguish different opt-out arrangements for the United Kingdom, Denmark and Ireland, which were fortified by some 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. There are differences between the rules governing Denmark on the one hand and the United Kingdom and Ireland on the other. Moreover, we are faced with two sets of rules for these countries: firstly, measures building upon the Schengen acquis laid down in the Schengen Protocol and,133 secondly, measures in the area of freedom, security and justice that do not form part of the Schengen acquis, are governed by separate protocols134 with 127

See, again, Craig, Administrative Law, ch. 23. 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 Law in the Area of Migration Policy’, JCMSt. 51 (2013), p. 179–193. 129 See ECJ, Samba Diouf, C-69/10, EU:C:2011:524, paras 49–69. 130 See ECJ, Abdida, C-562/13, EU:C:2014:2453, paras 44–53. 131 For a recent study, see Reneman, EU Asylum Procedures and the Right to an Effective Remedy (Hart, 2014). 132 See 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 Charter’s Fundamental Rights and the Unwritten General Principles of EU Law: Good Administration as the Test Case’, EuConst 9 (2013), p. 73–101. 133 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 ECJ, United Kingdom vs. Council, C-77/05, EU:C:2007:803, paras 54–68. 134 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 versions (OJ 128

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special procedures.135 Altogether, we therefore need to distinguish four distinct opt-out arrangements for the United Kingdom/Ireland and Denmark and for measures (not) building upon the Schengen acquis.136 39 In practice, the recitals of all legislative acts indicate whether the United Kingdom, Ireland and/or Denmark are bound by the relevant instrument and whether it is considered to build upon the Schengen acquis.137 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 the measures commented upon with an indication of whether the measure in question applies to the United Kingdom, Ireland and/or Denmark. 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 Hailbronner/Thym, Legal Framework for EU Asylum Policy, MN 7).

1. Denmark 40

Denmark did not object to the abolition of internal border controls and had 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.138 However, the Danish government did not want to leave the Schengen zone and therefore negotiated a ‘political opt-in’ and ‘legal opt-out’139, 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.’140 As a result, Denmark cannot at present – unlike the United Kingdom and Ireland – opt into supranational decision-making on a case-by-case basis. However, it is allowed to terminate or modify the opt-out by means of a simple declaration the activation of which has been made politically conditional upon another referendum which the government has so far hesitated to call despite occasional calls to the contrary.141 At the time of writing, it seemed that a referendum might be called in 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). 135 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 and the Constitutional Treaty 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. 136 The presentation in this section builds on Thym, ‘Supranational Differentiation and Enhanced Cooperation’, in: Tridimas/Schu¨tze (eds), The Oxford Principles of European Union Law. Vol. I: The European Union Legal Order (OUP, 2015), forthcoming. 137 In most instruments, the information is contained in the last recitals. 138 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. 139 den Boer, ‘Justice and Home Affairs Cooperation in the Treaty on European Union’, Maastricht Journal of European and Comparative Law 4 (1997), p. 310, 311. 140 Hedemann-Robinson, ‘The Area of Freedom, Security and Justice with Regard to the UK, Ireland and Denmark’, in: O’Keeffe/Twomey (eds), Legal Issues of the Maastricht Treaty (Chancery Law, 1994), p. 189, 297. 141 Article 7 of the Protocol No. 16 on Denmark allows for its renunciation at any time, also in part. Moreover, Article 8 allows for the substitution of the strict opt-out by a flexible British-style solution, which permits case-specific opt-ins described below.

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2016 to switch to the more flexible British/Irish position as a result of which Denmark could possibly decide to opt-in various immigration and asylum measures. In line with its original compromise to oppose supranationalisation as a member of 41 the Schengen area, Denmark retains, with regard to measures building upon the Schengen acquis,142 the right to ‘decide within a period of 6 months … whether it will implement this decision in its national law.’ If it decides to do so, this decision will create an obligation under international law between Denmark and other Member States.’143 As a result, Denmark is bound by measures building upon the Schengen acquis on the basis of public international law.144 The experience in recent years does not indicate any major legal issues directly related to the opt-out.145 One reason for this comparatively trouble-free functioning of the opt-out 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 its status under 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 through the conclusion of an international agreement.146 This peculiarity confirms that the Danish opt-out is not as such directed against European cooperation on immigration and asylum law.

2. United Kingdom and Ireland In contrast to Denmark, the United Kingdom objects to the political project of 42 border-free travel. Consecutive British governments have 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.147 Nonetheless, the 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 on the basis of a flexible 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 Ireland.148 As in the case of monetary 142

By contrast, initiatives which are not part of the Schengen acquis are subject to a strict opt-out. Article 4(1) Protocol No. 16 on Denmark; if Denmark decides against participation, the other Member States may, under Article 4(2), ‘consider appropriate measures to be taken’, which may justify the reintroduction of border controls in extreme scenarios; see Thym, Ungleichzeitigkeit und Europa¨isches Verfassungsrecht (Nomos, 2004), p. 110–114, available online at http://www.ungleichzeitigkeit.de [last accessed 13 November 2015]. 144 The Protocol refrains from a definition of international law; in essence, general principles of Union law, such as direct and supreme effect, and the ECJ’s jurisdiction do not apply. 145 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. 146 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 III Regulation (EU) No 604/2013. 147 See Wiener, ‘Forging Flexibility – The British ‘No’ to Schengen’, EJML 1 (1999), p. 441, 456–9 and the evidence in House of Lords Select Committee on the European Communities, Schengen and the United Kingdom’s Border Controls, 7th Report, Session 1998/99. 148 See Fahey, ‘Swimming in a Sea of Law’, CML Rev. 47 (2010), p. 673, 679–82 and the Declaration (No. 56) of Ireland (OJ 2008 C 306/268). Ireland has later occasionally pursued a more restrictive approach and opted out of some initiatives despite of British participation. 143

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union, the asymmetry of the Schengen law was characterised by an inherent pragmatism: granting an opt-out to three Member States was a compromise to secure the unanimity necessary for Treaty change. Britain would not have consented to supranationalisation in Amsterdam without an opt-out. 43 Upon closer inspection, the British/Irish opt-out is the most prolific expression of the a` la carte logic of principled freedom for Member States.149 Firstly, Britain and Ireland retain the right, during the legislative process, to ‘notify … that they wish to take part’ in the adoption of a proposal.150 On this basis, the United Kingdom and/or Ireland took the route of ex ante participation in the legislative procedure; they decided to participate in many (not all) measures on immigration and asylum (the precise scope of participation will be confirmed in the sections with introductions to the chapters on border controls, immigration and asylum; see above MN 39). Originally, the arrangement did not provide for subsequent withdrawal after a decision to participate had been made; any decision to opt-in was a one-way street towards closer integration. The Lisbon Treaty reversed this situation by granting Britain and Ireland the option of unilateral withdrawal (see below MN 45). Secondly, both states retain the option of ex post accession at a later stage. Britain and Ireland ‘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.151 Indeed, both countries decided to join in important areas of the original Schengen cooperation, albeit without subscribing to the abolition of internal border controls.152 The combined effect of ex ante and ex post participation was quite constructive. 44 The United Kingdom’s and Ireland’s freedom of choice is not absolute. The Schengen Protocol limits participation to proposals and initiatives to those ‘which are capable of autonomous application.’153 This meant, in the eyes of the Council, that two British requests for participation in the borders agency Frontex 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.154 The ECJ confirmed this standpoint in two judgments which demonstrated a certain willingness on the side of the Court to ensure that the opt-out arrangements do not undermine the uniform and coherent application of Schengen law.155 Since the Lisbon Treaty leaves the relevant provisions intact, this case law remains relevant: Britain may not sign up to measures building on the Schengen acquis if they require the application of the broader legislative context.156

149 See Thym, ‘Supranational Differentiation and Enhanced Cooperation’, in: Tridimas/Schu ¨ tze (eds), The Oxford Principles of European Union Law. Vol. I: The European Union Legal Order (OUP, 2015), sect. II.A.3 (forthcoming). 150 Article 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). 151 See Article 4 Schengen Protocol and Article 4 Protocol No. 21. 152 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 149/73). 153 Advocate General Verica Trstenjak, United Kingdom vs. Council, C-77/05, EU:C:2007:419, para 107. 154 Legally, both disputes concerned the delimitation of Articles 4–5 Schengen Protocol and the (more flexible) rules of Protocol No. 21 (n 134); for detail see ECJ, United Kingdom vs. Council, C-77/05, EU:C:2007:803; and ECJ, United Kingdom vs. Council, C-137/05, EU:C:2007:805. 155 See Fletcher, ‘Schengen, the European Court of Justice and Flexibility under the Lisbon Treaty’, EuConst 5 (2009), p. 71, 83–88. 156 See Piris, The Lisbon Treaty (CUP, 2010), p. 199.

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During the intergovernmental conference drafting the Lisbon Treaty, the British 45 government demanded and obtained further flexibility.157 London insisted upon the right to opt out of any amendment of instruments in whose adoption it had earlier decided to participate (for example, the Asylum Qualification Directive158). By means of a simple declaration, the UK and/or Ireland may withdraw itself from an ongoing legislative process, although it is bound by the instrument the other Member States want to modify.159 To be sure, this can only be done when amendments are made: without a proposal for legislative change, Britain cannot opt out. In cases of amendments, however, London retains the ability to pick and choose as it wishes. From the perspective of legal certainty, it is regrettable that Britain (and Ireland) will continue to be bound by previous rules, even if these rules are repealed with regard to all other Member States because of an amendment.160 Whenever the British or the Irish exclude themselves from amendments, the Council may vote against British participation in related instruments, from which the UK and/or Ireland do not wish to retract, if such ‘rump’ legislation cannot be applied effectively.161 The example of Frontex demonstrates that the ECJ may support the Council in cases of conflict (see above MN 44).

IV. Human Rights and International Law EU legislation is based on the general commitment in Article 6 TEU to recognise the 46 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).

1. EU Charter The entry into force of the Treaty of Lisbon rendered the Charter of Fundamental 47 Rights legally binding: the rights and principles in the Charter shall have the same legal value as the Treaties.162 The Charter is binding on the EU legislature and can constitute grounds to challenge the validity of legislative acts before the Court of Justice (irrespective of whether the recitals of EU legislation invoke the Charter expressly).163 Moreover, 157 See No. 19 lit. l of the IGC 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. 158 Cf. recital 50 of Asylum Qualification Directive 2011/95/EU in contrast to recital 38 of the former Asylum Qualification Directive 2004/83/EC. 159 See Article 5(2)–(5) Schengen Protocol and Article 4a Protocol No. 21. 160 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; cf. 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, 7th Report of the Session 2008–09, paras 15–20 and Peers, EU Justice, p. 78–84. 161 See Article 5(3) Schengen Protocol and Article 4a(2) Protocol No. 21. 162 Cf. Article 6(1) TEU. 163 Procedurally, this can be done by means of an action for annulment under Article 258 TFEU or by means of preliminary reference under Article 267 TFEU, which is mandatory also for courts 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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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 States are also bound by the Charter but ‘only when they are implementing Union law.’164 The precise meaning of that provision has been (and still is) subject to intense debate in judicial and academic circles that culminated in an exchange of blows between the European Court of Justice and the German Federal Constitutional Court.165 In its Åkerberg Fransson judgment, the ECJ maintained that Member States are bound ‘within the scope of European Union law.’166 Closer inspection demonstrates that the precise scope of this formulation remains ambiguous and has been subject to a number of restrictive follow-up judgments.167 48 Any decision on whether national measures fall within the scope of the Charter therefore requires careful analysis of whether the factual circumstances of the dispute and the domestic provision in question are covered by EU legislation on immigration and asylum ratione materiae, personae, temporis and loci.168 Whenever EU legislation does not apply to specific subject areas or categories of persons, the Charter doesn’t apply either. One may activate national constitutions and/or the ECHR instead, but the ECJ does not hold jurisdiction on these instruments.169 This means, by way of example, that the Charter applies to the living conditions of those with subsidiary protection status (as far as EU legislation regulates their status in Articles 20–35 Asylum Qualification Directive 2011/95/EU), while the same subject areas cannot be analysed in light of the Charter for those awarded complementary humanitarian protection under domestic law.170 Similarly, not all border control activities can be assessed in the light of the Charter: the latter applies only in so far as the Schengen Borders Code or related instruments prescribe obligations that the national border police has to respect.171 Notwithstanding these caveats, it is well established that the exercise of national implementing discretion can be judged in the light of the EU Charter in cases where EU legislation leaves the Member States different options how to achieve the objective prescribed in a Directive or Regulation.172 49 When interpreting the Charter, the meaning of specific guarantees can often be identified under recourse to the European Convention of Human Rights and corresponding case law of the ECtHR, since the Charter calls for a parallel interpretation of both instruments whenever it contains rights which are corresponding to guarantees in the ECHR.173 To refer to the case law of the human rights court in Strasbourg is standard practice for EU judges in Luxembourg, even though the EU has not yet acceded formally to the ECHR (see below MN 51). Moreover, the official explanations attached to the Charter are to be given due regard (see above MN 13). As is the case with most human rights, guarantees in the Charter are not absolute: interferences can 164

Article 51(1) TFEU. For further comments, see Thym, ‘Separation versus Fusion’, EuConst 9 (2013), p. 391–419. 166 ECJ, Åkerberg Fransson, C-617/10, EU:C:2013:280, para 19. 167 See Thym, ‘Blaupausenfallen bei der Abgrenzung von Grundgesetz und Grundrechtecharta’, Die ¨ ffentliche Verwaltung 2014, p. 941–951; and Fontanelli, ‘Implementation of EU Law through Domestic O Measures after Fransson’, EL Rev. 39 (2014), p. 682, 689–697. 168 For a typology, see Thym, ibid., p. 948–950. 169 ECJ, Åkerberg Fransson, C-617/10, EU:C:2013:280, para 44 rejects an autonomous interpretation of the ECHR in areas not covered by Union law and the EU Charter. 170 See ECJ, M’Bodj, C-542/13, EU:C:2014:2452, paras 42–46. 171 See ECJ, Zakaria, C-23/12, EU:C:2013:24, paras 39–42. 172 For the former Dublin II Regulation (EC) No 343/2003, see ECJ, N.S. et al., C-411/10 & C-493/10, EU:C:2011:865, paras 65–68; and for the Family Reunification Directive 2003/86/EC, see ECJ, Parliament vs. Council, C-540/03, EU:C:2006:429, paras 22–23, 104–105. 173 See Article 52(3) of the Charter. 165

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be justified if they pursue a legitimate aim in a proportionate manner.174 When it comes to the contents, the Charter contains both individual rights and more abstract ‘principles’, in particular in Title IV on solidarity.175 Principles require implementation by means of either Union or domestic legislation, which can be applied by courts only in conjunction with implementing measures (although the precise degree of legal obligations remains uncertain).176 In practice, this concerns primarily the social rights in Articles 27 to 38 of the Charter. The relevance of individual guarantees will be discussed in the thematic introductions 50 to the different chapters of this commentary. Relevant provisions include procedural guarantees for administrative proceedings and judicial review (see above MN 37). 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 are pertinent (see Thym, Legal Framework for Entry and Border Controls, MN 32–34). In the context of legal migration, the guarantee of private and family life in Article 7 of the Charter (see Thym, Legal Framework for EU Immigration Policy, MN 52–56), the provisions on equal treatment (see ibid., MN 37–42) as well as limited guarantees on the labour market and intra-European mobility deserve closer attention (see ibid., MN 34–35), whereas Articles 4 and 18 of the Charter are crucial for asylum law, since they reaffirm guarantees under the ECHR (see Hailbronner/Thym, Legal Framework for EU Asylum Policy, MN 56–63).

2. European Convention In its human rights case law, the ECJ has traditionally afforded special significance to 51 the European Convention of Human Rights, although it does not formally have the rank of primary Union law. Article 6(2) TEU allows for the formal accession of the EU to the ECHR and a draft accession agreement had been negotiated but was blocked by the ECJ due to concerns about the autonomy of the supranational order.177 Remarkably, asylum law was one of the issues of concern for judges in Luxembourg,178 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). It should be noted in this respect that the future formal accession of the EU to the ECHR would primarily have procedural consequences and would not change the constitutional status of the ECHR under EU law,179 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 the ECtHR, while the principled orientation of the Charter at the ECHR guarantees widespread convergence in regular circumstances (see above MN 49).

174

A generic provision on the justification of restrictions can be found in Article 52(1) of the Charter. See Article 52(5) of the Charter, which leaves open which provisions guarantee individual rights or contain only ‘principles’. 176 Cf. Article 52(5) of the Charter, which excludes, as a result, that individual rights can be deduced directly from principles; for further comments, see Ja¨a¨skinen, ‘Fundamental Social Rights in the Charter’, in: Peers et al. (eds), The EU Charter of Fundamental Rights. A Commentary (C.H. Beck/Hart, 2014), p. 1703–1714. 177 See ECJ, Accession to the ECHR, Opinion 2/13, EU:C:2014:2454. 178 See ECJ, ibid., paras 192–195. 179 See ECJ, ibid., paras 189–190. 175

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Introduction

Although the ECHR contains no right to asylum, the case law of the European Court of Human Rights in Strasbourg has become increasingly relevant to immigration and asylum law in recent years. This will be discussed in this commentary for private and family life under Article 8 ECHR (see Thym, Legal Framework for EU Immigration Policy, MN 52–56) and the prohibition of inhuman and degrading treatment as well as the guarantee of an effective remedy in line with Articles 3 and 13 ECHR (see Hailbronner/Thym, Legal Framework for EU Asylum Policy, MN 56–60). Moreover, the question of a right to entry and extraterritorial applicability will be discussed (see Thym, Legal Framework for Entry and Border Controls, MN 32–39).

3. Geneva Convention and International Human Rights Article 78(1) TFEU mandates that the EU asylum acquis complies with the Geneva Convention, 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 Hailbronner/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 Geneva Convention or assumed the functions of Member States by means of functional succession (as it had previously done with regard to the GATT Agreement).180 As a result, the ECJ holds no autonomous jurisdiction to interpret the Geneva 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.’ It also reaffirms that the Geneva Convention and the Protocol constitute the cornerstone of the international legal regime for the protection of refugees.181 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.182 On this basis, the ECJ recognised explicitly that the International Covenant on Civil and Political Rights (ICCPR)183 can be relied upon in order to identify the contents of EU human rights – although judicial practice has remained sketchy, not least since the international guarantees on migration usually fall short of the ECtHR jurisprudence.184 Moreover, the ECJ emphasised that the views of international treaty bodies, such as the Human Rights Committee, are not legally binding.185 Other international agreements cannot be considered legally binding ipso jure, since the ECJ insists that they must be binding for all Member States. As a result, the UN Convention on the Rights of the Child186 and the 53

180

See ECJ, Qurbani, C-481/13, EU:C:2014:2101, paras 22–29. Recital 4 Asylum Qualification Directive 2011/95/EU. 182 Cf. Article 6(3) TEU, although the provisions does not list international human rights treaties explicitly; for further reflection, see Rosas, ‘The Charter and Universal Human Rights Instruments’, in: Peers et al. (eds), The EU Charter of Fundamental Rights. A Commentary (C.H. Beck/Hart, 2014), p. 1685–1702. 183 See ECJ, Parliament vs. Council, C-540/03, EU:C:2006:429, para 37. 184 See Fitzpatrick, ‘The Human Rights of Migrants’, in: Aleinikoff/Chetail (eds), Migration and International Legal Norms (T.M.C. Asser, 2003), p. 169, 171–178. 185 See ECJ, Grant, C-249/96, EU:C:1998:63, para 46. 186 See ECJ, Parliament vs. Council, C-540/03, EU:C:2006:429, para 37. 181

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European Social Charter187, as well as the UN188 and the European189 conventions against torture190 can be relied upon in order to identify unwritten principles of European Union law, since these instruments have been ratified by all the current Member States of the EU. 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. By contrast, the European Union is not bound by international human rights treaties 55 that have not been ratified by all Member States.191 This implies in particular that the UN Convention on Migrant Workers192 has no legal effect in the EU legal order, since this instrument has not been ratified by a single EU Member State.193 The same applies to most Conventions of the International Labour Organisation, most of which have not been ratified by all EU Member States. As a result they cannot be relied upon as a legal yardstick for judicial review in the field of EU immigration and asylum law.194 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 and which have been discussed above (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 ever since the seminal Costa/E.N.E.L. judgment the ECJ has categorically upheld that the EU Treaties have established an autonomous supranational legal order distinct from public international law.195 It stipulates, on this basis, that the legal effects of international agreements in the EU legal order are determined by the latter. It is 187 See ECJ, ibid., para 39; the European Social Charter has a certain impact in the field of family reunion, see Hailbronner/Are´valo, Directive 2003/86/EC Article 3 MN 217; generally, see O’Cinne´ide, ‘Migrant Rights under the European Social Charter’, in: Costello/Freedland (eds), Migrants at Work (OUP, 2014), p. 282–302. 188 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 24 November 2015]. 189 See the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of 26 November 1987, CETS No. 126; for ratifications, see http://conventions.coe.int [last accessed 24 November 2015]. 190 Their relevance for the general principles of EU law has not been recognised explicitly by the ECJ yet. 191 Cf. argumentum e contrario ECJ, Parliament vs. Council, C-540/03, EU:C:2006:429, para 37; as well as Article 53 of the Charter, 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. 192 See the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, UNTS vol. 2220, p. 3; for ratifications, see http://indicators.ohchr.org [last accessed 24 November 2015] and for further comments, see Cholewinski, Migration and Human Rights. The United Nations Convention on Migrant Workers’ Rights (CUP, 2009). 193 Cf. the list of ratifications at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-13&chapter=4&lang=en [last accessed 24 November 2015]. 194 For an overview of the ILO instruments, see Wiesbrock, Legal Migration, p. 247–252. 195 Cf. ECJ, Costa/E.N.E.L, 6/64, EU:C:1964:66.

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settled case law that international agreements concluded by the EU institutions ‘form an integral part of [Union] law’196 and 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.197 The ECJ assumes, moreover, that international agreements can be relied upon to challenge the validity of EU legislation.198 Provisions of international agreements concluded by the EU have a hierarchical 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,199 nor can the European Convention on Human Rights and corresponding ECtHR case law after the EU’s accession (see above MN 51). 57 It should be highlighted that the practical relevance of international agreements concluded by the EU is compromised significantly by settled ECJ case law rendering the effects mentioned above subject to the direct applicability of the relevant international agreements. Provisions in international treaties that are not directly applicable cannot be relied upon by individuals or courts in order to challenge the validity of secondary Union law or domestic rules.200 In assessing whether international treaties can be directly applied, the ECJ correctly 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,201 which may deviate from the interpretative standards for supranational EU law (see above MN 10– 20). This implies, in accordance with settled case law, that even provisions with an identical wording may have a different meaning to the equivalent rules in EU legal instruments.202 While the ECJ has traditionally been rather strict towards international agreements with a 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.203 Among the association agreements, the Ankara Agreement between the EEC and Turkey has become particularly relevant to immigration law in recent years (see above MN 19; and Thym, Legal Framework for EU Immigration Policy, MN 58). 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 in the context of the unwritten general principles of Union law (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 applicable204 – 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, however, from the safeguard clause in 196

ECJ, Haegemann II, 181/73, EU:C:1974:41, para 5. On the conditions for direct applicability and primacy, see below MN 57. 198 See, generally, ECJ, IATA & ELFAA, 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. 199 Cf. ECJ, Kadi & Al Baraak/Rat & Kommission, C-402/05 & C-415/05 P, EU:C:2008:461, in part. paras 305–309. 200 In the absence of direct applicability, the ECJ also excludes indirect effects, such as consistent interpretation; for further comments, see Thym, ‘Foreign Affairs’, in: von Bogdandy/Bast (eds), Principles of European Constitutional Law, 2nd edn (Hart, 2009), p. 309, 320–323. 201 See ECJ, Walz, C-63/09, EU:C:2010:251, para 23. 202 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-221/11, EU:C:2013:583, paras 44–61. 203 See Thym, ibid., p. 322–323. 204 Cf. ECJ, Intertanko, C-308/06, EU:C:2008:312, paras 48–52. 197

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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.205 This safeguard for earlier agreements is static, i. e. Member States have lost the capacity to amend them.206 Furthermore, the conclusion of new agreements in areas covered by secondary EU legislation is an exclusive competence of the European Union.207 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 Hailbronner/Are´valo, Directive 2003/86/EC Article 3 MN 16– 19). 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. In line with the objective of protecting existing legal obligations, explicit safeguard 59 clauses in secondary legislation affect only Member States that had ratified the agreement(s) in question before the adoption of secondary EU legislation. They can concern bilateral treaties on commerce and navigation, which never gained much influence in most domestic legal orders.208 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.209 It is therefore necessary to assess on a case-by-case basis which Member States ratified an agreement: the European Convention on the Legal Status of Migrant Workers of 1977 has been ratified by eleven state parties, including six EU Member States and five third states,210 the European Convention on Social and Medical Assistance of 1953 applies to several Member States, as well as Norway, Iceland and Turkey,211 and the European Convention on Establishment of 1955 has been ratified by ten EU Member States, as well as Norway, Iceland and Turkey.212 Given that the nationals of Norway and Iceland hold extensive rights under the EEA Agreement, the practical relevance of these conventions is extremely limited at present: they relate in particular to Turkish nationals residing legally in Member States to which the conventions apply. For more comments, see Koutrakos, EU International Relations Law, 2nd edn (Hart, 2015), ch. 9. See ibid. and ECJ, Commission vs. Austria, C-205/06, EU:C:2009:118. 207 See Article 3(2) TFEU. 208 See Bast, Aufenthaltsrecht, p. 81–87; and Randelzhofer, Der Einfluss des Vo ¨ lker- und Europarechts auf das deutsche Ausla¨nderrecht (de Gruyter, 1980), p. 32–40. 209 See Groenendijk, ‘Long-Term Immigrants and the Council of Europe’, EJML 1 (1999), p. 275, 286– 288. 210 Convention of 24 November 1977, CETS No. 93, entry into force on 1 May 1983; it has been ratified by France, Italy, the Netherlands, Portugal, Spain and Sweden – as well as the third states Albania, Moldova, Norway, Turkey and Ukraine; see http://conventions.coe.int/[last accessed on 24 November 2015]. 211 Convention of 11 December 1953, CETS No. 14, entry into force on 1 July 1954, which has been ratified by the third states mentioned above as well as Belgian, Denmark, Estonia, France, Germany, Greece, Ireland, Italy, Luxembourg, Malta, the Netherlands, Portugal, Spain, Sweden and the United Kingdom; see ibid. 212 Convention of 13 December 1955, CETS No. 19, entry into force on 23 February 1965, which has been ratified by the third states mentioned above as well as Belgium, Denmark, Germany, France, Greece, Ireland, Italy, Luxembourg, the Netherlands, Austria, Sweden and the United Kingdom; see ibid. 205 206

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PART B ENTRY AND BORDER CONTROLS I. Legal Framework for Entry and Border Controls Selected Bibliography: Bast, Aufenthaltsrecht und Migrationssteuerung (Mohr Siebeck, 2011); Blumann (ed), Les frontie`res de l’Union europe´enne (Bruylant, 2013); den Heijer, Europe and Extraterritorial Asylum (Hart, 2012); Goodwin-Gill/McAdam, The Refugee in International Law, 3rd edn (OUP, 2007); Groenendijk/Guild/Minderhoud (eds), In Search of Europe’s Borders (Kluwer, 2003); Hailbronner, Immigration and Asylum Law and Policy of the European Union (Kluwer, 2000); Maes/Foblets/De Bruycker/Vanheule/Wouters (eds), External Dimensions of EU Migration and Asylum Law and Policy (Bruylant, 2011); Martenczuk/van Thiel (eds), Justice, Liberty, Security: New Challenges for EU External Relations (VUB Press, 2008); Meloni, Visa Policy within the European Union Structure (Springer, 2005); Muzak, in Mayer & Sto¨ger (2012), ‘Articles 77–80 TFEU’, in: Mayer/Sto¨ger (eds), Kommentar zu EUV und AEUV (Maunz, looseleaf: 141th edn, 2012); Pastore, ‘Visas, Borders, Immigration’, in: Walker (ed), Europe’s Area of Freedom, Security and Justice (OUP, 2004), p. 89–143; Rubio-Marı´n (ed), Human Rights and Immigration (OUP, 2014); Peers, EU Justice and Home Affairs Law, 3rd edn (OUP, 2011); ter Steeg, Das Einwanderungskonzept der EU (Nomos, 2006); Ryan/Mitsilegas (eds), Extraterritorial Immigration Control (Martinus Nijhoff, 2010); Thym, Migrationsverwaltungsrecht (Mohr Siebeck, 2010); Weiß, ‘Articles 77–80 TFEU’, in: Streinz (ed), EUV/AEUV. Kommentar, 2nd edn (C.H. Beck, 2011).

Content I. General Remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Evolution of the Schengen Acquis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Territorial Scope (Member State Participation) . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Treaty Guidance under Article 77 TFEU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Efficient Border Monitoring (Article 77(1) TFEU) . . . . . . . . . . . . . . . . . . . . . . . 2. Scope of EU Competences (Article 77(2) TFEU) . . . . . . . . . . . . . . . . . . . . . . . . . a) Visas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) External Border Controls. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Intra-European Free Movement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) Integrated Border Management System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e) Absence of Internal Border Controls. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Travel Documents (Article 77(3) TFEU) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Overarching Principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Maintenance of Law and Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. External Relations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Human Rights and International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. (No) Right to Enter EU Territory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Extraterritorial Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 1 5 6 6 7 9 16 18 19 22 24 25 25 28 31 32 38

I. General Remarks 1. Evolution of the Schengen Acquis The political objective of establishing an internal market as an ‘area without internal 1 frontiers’1 supported the abolition of border controls as a ‘constant and concrete reminder to the ordinary citizen that the construction of a real European Community 1

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is far from complete.’2 After initial discussions on the feasibility of supranational lawmaking, the Benelux countries, France and Germany seized the initiative and signed a political commitment on the gradual abolition of checks at their common borders in 1985.3 The latter paved the way for the ‘Schengen Implementing Convention’ of 1990 with detailed rules on the abolition of border controls and corresponding flanking measures.4 The remaining Member States, with the exception of Ireland and the United Kingdom, later acceded to the Schengen Implementing Convention on the basis of international accession treaties during the 1990s.5 On this basis, intra-European border controls were gradually being abandoned: until today, we must distinguish between the applicability of the Schengen acquis and the effective abolition of border controls following an evaluation procedure and a decision to put the common rules into effect.6 EU Member States with the exception of the UK and Ireland had thus signed up to the travel area at the time of the Treaty of Amsterdam which integrated the Schengen acquis into the framework of the European Union. 2 Legally, the incorporated Schengen acquis was (and continues to be) construed as a specific form of enhanced cooperation whose establishment has already been authorised and which comprises all Member States with the exception of the United Kingdom and Ireland7, along with rather complex rules on the association of Denmark and the status of the United Kingdom and Ireland in relation to the new rules (see below MN 5). The Schengen Protocol attached to the Treaty of Amsterdam also contained principles and procedures for the definition of the body of rules that make up the Schengen acquis and the allocation of legal bases in the EU Treaties for all Schengenrelated instruments.8 Insofar as the amendment of former rules are concerned, the Schengen Protocol reaffirmed that all ‘proposals and initiatives … shall be subject to the relevant provisions of the Treaties.’9 Many rules have been replaced in the meantime by new legislative instruments in line with the decision-making procedure applicable, thus illustrating that the Schengen law has become regular European law. The Schengen 2 Commission White Paper, Completing the Internal Market, COM(85) 310, para 47; on the evolution of border control cooperation, see Pastore, Visas, Borders, Immigration, p. 94–98. 3 The Agreement on the Gradual Abolition of Checks at their Common Borders of 14 June 1985 between the Benelux countries, France and Germany was an agreement of political intent to abolish border controls in the future by means of a second treaty. 4 Convention Implementing the Schengen Agreement of 14 June 1985 of 19 June 1990 (OJ 2000 L 293/ 19); on the contents, see O’Keeffe, ‘The Schengen Convention’, Y.E.L. 11 (1991), p. 185–219. 5 Agreements on accession were signed with regard to: Italy on 27 November 1990 (BGBl. = [German] Federal Law Gazette 1993 II 1902), entry into force on 1 July 1997 (BGBl. 1997 II 1530); Spain and Portugal on 25 June 1991 (BGBl. 1993 II 1902), entry into force on 1 March 1994 (BGBl. 1996 II 242); Greece on 6 November 1992 (BGBl. 1996 II 2542) and Austria on 28 April 1995 (BGBl. 1997 II 966), which both entered into force on 1 July 1997 (BGBl. 1998 II 1968); Denmark, Finland and Sweden on 19 December 1996 (OJ 2000 L 239/97), which was never ratified and entered into force as an integral part of the Treaty of Amsterdam (see below MN 2). 6 On gradual implementation, see the Joint Declaration to Article 139(2) Schengen Implementing Convention, ibid.; within the EU framework, corresponding rules were laid down in Article 3(2) Act of Accession 2003 (OJ 2003 L 236/33), Article 4(2) Act of Accession 2005 (OJ 2005 L 157/203) and Article 4(2) Act of Accession 2012 (OJ 2012 L 112/21); border controls were abandoned in 1995, 1997, 1999, 2000, 2007, 2008, and 2013. 7 See Article 1 of the present Protocol (No. 19) on the Schengen acquis integrated into the framework of the European Union (OJ 2008 C 115/290) and the predecessor (OJ 1997 C 340/93); new Member States will participate in the Schengen area in accordance with Article 7 ibid. 8 The integration was performed by Decision 435/99/EC (OJ 1999 L 176/1) and Decision 436/99/EC (ibid. 17); for constitutional implications, see Thym, ‘The Schengen Law’, ELJ 8 (2002), p. 218–245. 9 Article 5 Schengen Protocol, ibid.; for details, see Hailbronner, ‘European Immigration and Asylum Law under the Amsterdam Treaty’, CML Rev. 35 (1998), p. 1047, 1059–1065; and Corrado, ‘L’Inte´gration de Schengen dans l’Union Europe´enne’, Revue du Marche´ Commun 1999, p. 342–349.

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Borders Code Regulation (EC) No 562/2006 and the Visa Code Regulation (EC) No 810/2009, which will be commented upon in this volume, are the most prominent expression of the supranationalised Schengen law. Whereas to many citizens ‘Schengen’ simply means they do not need a passport 3 when crossing borders in continental Europe, the so-called flanking measures compensating national authorities for the loss of control options at domestic borders through pan-European cooperation on issues such as visas, police cooperation, criminal matters and immigration, present the focal point of policy debates. First agreed upon by interior ministers of the five original Schengen participants, these flanking measures soon developed a momentum of their own and constitute, to this day, the backbone of justice and home affairs cooperation in the European Union. This process has been described (and criticised) as ‘securisation’ by some authors, since the agenda of interior ministers dominated early debates,10 although deliberations have become much more balanced in the meantime after the progressive extension of qualified majority voting in the Council and co-decision powers of the European Parliament (see Hailbronner/Thym, Constitutional Framework, MN 3–4).11 While the ECJ originally emphasised the inherent link between the flanking measures and the abolition of internal border controls,12 the Treaty of Lisbon reaffirmed the conceptual autonomy of the area of freedom, security and justice as a policy field in its own right. EU activities are no longer presented as a spillover of the single market, but pursue self-sufficient objectives whose exact demarcation remains the prerogative of the EU legislature (see Hailbronner/Thym, Constitutional Framework, MN 5–9). Conceptually, the move towards an ‘area of freedom, security and justice’ highlights 4 the territorial dimension of the Schengen area and related policies with regard to border controls and visas. Nevertheless, the use of the term ‘area’ does not have a fixed meaning in the EU context: it was used repeatedly for the description of projects, such as the European Economic Area or the European Higher Education Area, whose contours remained uncertain.13 Joint policy measures on border controls can be perceived, nonetheless, to present the federal dimension of the integration project with the European Union assuming some (not: all) state-like features, at least at a symbolic level.14 Judges in Luxembourg moved in this direction semantically when they spoke, in judgments on Union citizenship, of the ‘territory of the Union as a whole’15 or, simply, of the ‘territory of the European Union.’16 It should be noted, though, that the federalising pull of the Schengen acquis remains incomplete: the asymmetric (non-)participation of some 10 See Guiraudon, ‘European Integration and Migration Policy’, JCMSt. 38 (2000), p. 251–271; and Costello, ‘Administrative Governance and the Europeanisation of Asylum and Immigration Policy’, in: Hofmann/Tu¨rk (eds), EU Administrative Governance (Elgar, 2006), p. 287, 289–293. 11 See Acosta Arcarazo/Geddes, ‘The Development, Application and Implications of an EU Rule of Law in the Area of Migration Policy’, JCMSt. 51 (2013), p. 179–193; and Oosterom-Staples, ‘Has Europeanization Silenced Criticism on Intergovernmental External Border Cooperation?’, in: Guild/Minderhoud (eds), The First Decade of EU Migration and Asylum Law (Martinus Nijhoff, 2012), p. 95–125. 12 Cf. ECJ, Wijsenbeek, C-378/97, EU:C:1999:439, para 40 rejecting the direct applicability of Article 26 TFEU. 13 Monar, ‘The Area of Freedom, Security and Justice’, in: von Bogdandy/Bast (eds), Principles of European Constitutional Law, 2nd edn (Hart, 2009), p. 551, 556–557 shows that the term ‘area’ was meant originally to avoid the term ‘policy’ at the time of the Treaty of Amsterdam, which in eurospeak may imply a higher density of cooperation (today’s designation as a ‘policy’ was introduced by the Treaty of Lisbon). 14 See Lindahl, ‘Finding a Place for Freedom, Security and Justice’, EL Rev. 29 (2004), p. 461–484. 15 ECJ, McCarthy, C-434/09, EU:C:2011:277, para 66. 16 ECJ, Dereci et al., C-256/11, EU:C:2011:734, para 50; for further reading, see Azoulai, ‘Transfiguring European Citizenship’, in: Kochenov (ed), EU Citizenship and Federalism. The Role of Rights (CUP, 2015), sect. 1, 2 (forthcoming).

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Member States limits the identificatory potential of external border controls;17 instead of federal agencies replacing the Member States, national authorities embark upon various forms of transnational cooperation in justice and home affairs (see below MN 8); and Article 77(4) TFEU reaffirms that border control policies shall not affect the national demarcation of state borders in accordance with international law.18 In the words of the German Constitutional Court: the area of freedom, security and justice ‘reduces territorial sovereignty as an element of the state territory’, although the EU ‘does not have comprehensive territorial authority replacing that of the [Member States].’19

2. Territorial Scope (Member State Participation) 5

Measures on border controls and visas are subject to country-specific opt-outs for the United Kingdom, Ireland and Denmark. The abstract rules guiding these arrangements have been described in the introductory chapter (see Hailbronner/Thym, Constitutional Framework, MN 38–45). It was demonstrated that the overall picture is rather complex and it can be difficult to discern in specific scenarios, since the country-specific opt-outs for the United Kingdom, Ireland and Denmark do not follow a uniform pattern. There are differences between the rules for Denmark on the one side and those for the United Kingdom and Ireland on the other side. Moreover, the above mentioned countries rely on two different sets of rules: measures building upon the Schengen acquis and other instruments. In practice, the last recitals of most instruments indicate whether the United Kingdom, Ireland and/or Denmark are bound. In order to facilitate orientation, the list of the measures below indicates whether the instruments commented upon in this volume are binding for the United Kingdom, Ireland and/or Denmark and whether they are considered to be building upon the Schengen acquis.20 Instrument

Denmark21

Schengen?22

United Kingdom

Ireland

Schengen Borders Code Regulation (EC) No 562/2006

no

no

no (int. law)

yes

Visa Code Regulation (EC) No 810/2009

no

no

no (int. law)

yes

Frontex Regulation (EC) No 2007/2004

no

no

no (int. law)

yes

17 See Thym, ‘Supranational Differentiation and Enhanced Cooperation’, in: Tridimas/Schu ¨ tze (eds), The Oxford Principles of European Union Law, Vol. I (OUP, 2015), sect. 4.4 (forthcoming). 18 The provision was introduced by the Treaty of Lisbon in line with the debates in the European Convention drafting the Constitutional Treaty in response to the lingering dispute between Spain and the United Kingdom over Gibraltar; see Labayle, ‘L’espace de liberte´, se´curite´ et justice dans la Constitution pour l’Europe’, Revue trimestrielle de droit europe´en 41 (2005), p. 437, 453. 19 Federal Constitutional Court (Bundesverfassungsgericht), judgment of 30 June 2009, 2 BvE 2/08 et al., Treaty of Lisbon, BVerfGE 123, 267, para 345 (informal translation of the court). 20 For a list of other instruments, including the measures of the original Schengen acquis integrated into the EU Framework in 1999 (see above MN 2–3), see Thym, Ungleichzeitigkeit und Europa¨isches Verfassungsrecht (Nomos 2004), p. 119–130, available online at http://www.ungleichzeitigkeit.de [last accessed 24 November 2015]. 21 Note that Denmark can bound by measures building upon the Schengen acquis as a matter of public international law, if it declares its intention to do so in line with the rules of the Schengen Protocol described by Hailbronner/Thym, Constitutional Framework, MN 41. 22 Does the measure build upon the Schengen acquis? If yes, it is subject to the opt-out arrangements in the Schengen Protocol described by see ibid.

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Instrument Sea Borders Regulation (EU) No. 656/2014

United Kingdom

Ireland

no

no

Denmark no (int. law)

Schengen? yes

Participation in border control and visa policy instruments commented upon in this volume.

II. Treaty Guidance under Article 77 TFEU Article 77 TFEU 1. The Union shall develop a policy with a view to: (a) ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders; (b) carrying out checks on persons and efficient monitoring of the crossing of external borders; (c) the gradual introduction of an integrated management system for external borders. 2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures concerning: (a) the common policy on visas and other short-stay residence permits; (b) the checks to which persons crossing external borders are subject; (c) the conditions under which nationals of third countries shall have the freedom to travel within the Union for a short period; (d) any measure necessary for the gradual establishment of an integrated management system for external borders; (e) the absence of any controls on persons, whatever their nationality, when crossing internal borders. 3. If action by the Union should prove necessary to facilitate the exercise of the right referred to in Article 20(2)(a), and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt provisions concerning passports, identity cards, residence permits or any other such document. The Council shall act unanimously after consulting the European Parliament. 4. This Article shall not affect the competence of the Member States concerning the geographical demarcation of their borders, in accordance with international law.

1. Efficient Border Monitoring (Article 77(1) TFEU) The newly formulated Treaty objective for entry and border controls in Article 77(1) 6 TFEU emphasises that the EU’s activities are meant to support the ‘efficient monitoring of the crossing of external borders’ (part B) on the basis of ‘an integrated management system’ (part C). In short, ‘efficient’23 and well organised border controls are to be 23 While the English language version employs the process-oriented term ‘efficient’ (not the outcomeoriented word ‘effective’), other language versions, which are equally valid, use the term ‘effective’ or wording that can mean both; cf. the German ‘wirksam’, the French ‘efficace’ or the Spanish ‘eficaz.’

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strived for by the EU legislature, thereby emphasising that border control cooperation is no longer linked to the single market and has become a self-sufficient end in itself as an integral part of the area of freedom, security and justice (see above MN 3). In a similar way as other Treaty objectives, Article 77(1) TFEU is legally binding at an abstract level that does not translate into judiciable standards for the review of EU legislation or national implementing measures in regular circumstances (see Hailbronner/Thym, Constitutional Framework, MN 5–7).24 The twofold instructions for border controls and visas in one article show that the EU Treaty pursues a multilevel entry control concept that comprises activities at the territorial borders in the same way as it encompasses extraterritorial control activities. These include activities on the high seas (see below MN 38–41) and the cooperation with third states in the field of border controls (see below MN 28–30) and visas, which are handed out by the consulates of the Member States in third states as the ‘border abroad.’25

2. Scope of EU Competences (Article 77(2) TFEU) As a shared competence, legislation on entry and border controls must comply, like immigration and asylum policy, with the principles of subsidiarity and proportionality (see Thym, Legal Framework for EU Immigration Policy, MN 9). Although it should be acknowledged, that the Treaty objective of efficient border monitoring on the basis of an integrated management system (see above MN 6) stipulates a certain generosity in the application of the principles of subsidiarity and proportionality. Since most Member States have lost the ability to control their own territorial borders in the Schengen area, the principle of subsidiarity will not usually stand in the way of common action. EU action adds value by doing something that Member States alone cannot any longer achieve effectively. The term ‘measure’ in the introductory part of Article 77(2) TFEU indicates, in line with established EU terminology, that directives, regulations and decisions can be adopted: corresponding measures can provide for legislative harmonisation, enhance transnational administrative cooperation, establish financial support or provide for other activities.26 The broad Treaty objective implies, moreover, that the interpretation of legal bases in Article 79(2) TFEU, which expressly relates to the purposes of paragraph 1, should consider the Treaty objective.27 8 EU legislation on entry and border controls can embrace rules on administrative procedure and judicial protection which supplant, as leges speciales, the principle of national procedural autonomy that applies in the absence of express legislative prescriptions (see Hailbronner/Thym, Constitutional Framework, MN 34–37). Given that entry and border control policies have a tangible procedural dimension, corresponding EU rules are generally permissible, although one should bear in mind that the diversity of national administrative and judicial systems call for a certain flexibility on the side of the Member States in line with the principle of subsidiarity (see above MN 7). In accordance with the EU’s constitutional structure, the supranational level concentrates on legislative harmonisation and administrative support measures, while decisions affecting individuals are usually taken at national level by domestic authorities.28 The 7

24 See also Mu ¨ ller-Graff, ‘Der Raum der Freiheit, der Sicherheit und des Rechts in der Lissabonner Reform’, Europarecht Special Issue No. 1/2009, p. 105, 111–112; and Weiß, Article 77 TFEU para 4. 25 See Thym, Migrationsverwaltungsrecht, p. 335–341; and Guild, ‘The Border Abroad’, in: Groenendijk et al. (eds), In Search, p. 87–104. 26 By way of example, see Regulation (EU) No 515/2014 of 16 April 2014 establishing, as part of the Internal Security Fund, the instrument for financial support for external borders and visa (OJ 2014 L 150/143). 27 See von Bogdandy/Bast, ‘The Federal Order of Competences’, in: ibid. (eds), Principles of European Constitutional Law, 2nd edn (Hart, 2009), p. 271, 288; see also Weiß, Article 77 TFEU para 4. 28 See Article 291(1), (2) TFEU; and Articles 4(2), 5(1) TEU.

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move towards a federal administration that applies EU law directly towards individuals requires a foundation in the EU Treaties.29 Whether such basis exists, is to be assessed with regard to specific Treaty articles on the basis of general interpretative criteria,30 which should be subject to strict scrutiny in order to prevent vaguely formulated Treaty provisions from undermining the general constitutional structure of the European Union. The examples of Frontex (see below MN 20) and visa policy (see below MN 11) illustrate that it is possible for Member States to cooperate extensively below the threshold of a federal administration. a) Visas. Certain aspects of visa policy have been subject to a supranational competence 9 ever since Article 100a EC Treaty as amended by the Treaty of Maastricht, which was replaced by more extensive competences on visa issues in the Treaties of Amsterdam and Nice.31 The complexity of previous Treaty provisions entailed a number of intricate questions of legal interpretation most of which have become moot because of the simplification and complementation of EU competences in the Treaty of Lisbon.32 It is inherent in the proviso of a ‘common policy’ on visas that Article 77(2)(a) TFEU allows for a comprehensive policy approach towards short-term residence permits and does not limit itself to the codification of pre-existing competences under the Treaties of Amsterdam and Nice. This entails, more specifically, that nowadays the EU legislature holds an unequivocal competence for the harmonisation of rules on airport transit visas, although the holders of such visas do not usually cross the external Schengen borders for immigration purposes, since they remain within the transit area of international airports.33 Article 77(2)(a) TFEU covers rules on both visa requirements and procedure. The EU 10 legislature benefits from a principled discretion when determining countries whose nationals require a visa for entry into the Schengen zone. Visa requirements can have different rationales that are legitimate from a legal point of view: the legislature can pursue, among other things, strategic foreign policy considerations34 or be guided by migration policy objectives, such as the prevention of illegal migration.35 Moreover, the aim of efficient border monitoring (see above MN 6–7) supports a broad reading of Article 77(2)(a) TFEU which embraces detailed procedural or substantive prescriptions, such as the use of biometric identifiers during visa applications, application fees or security features that can help to prevent abuse. This conclusion extends to the Visa Information System which supports effective transnational cooperation among Member States; additional recourse to Article 74 TFEU may be required only for independent supranational databases reaching beyond the transnational connection among national systems.36 Of course, EU legislation has to comply with human rights (see below MN 31–41), including guarantees for data protection in the European Convention and the EU Charter.37 If access to these databases is granted to Europol or domestic 29 Simply allowing for ‘measures’ will not be enough in light of the constitutional design described above. 30 Cf. Article 2(6) TFEU. 31 See Meloni, Visa Policy, p. 43–120 et seq. und Pastore, Visas, Borders, Immigration, p. 89–107. 32 Today’s Article 77(2)(a) TFEU is the result of a conscious choice, during the European Convention drafting the erstwhile Constitutional Treaty, to simplify and complement existing provisions; see the Final Report of Working Group X, doc. CONV 426/02 of 2 December 2002. 33 See Article 3 Visa Code Regulation (EC) No 810/2009; see also, Peers, EU Justice, p. 236; and Weiß, Article 77 TFEU para 19. 34 Cf. Article 21(3) TEU. 35 On the corresponding practice, see Meloni, Visa Policy, p. 100–107. 36 Storage of personal data at EU level may be considered the demarcation line; see also Peers, EU Justice, p. 151; and Bast, Aufenthaltsrecht, p. 157–158. 37 Cf. Brouwer, Digital Borders and Real Rights (Martinus Nijhoff, 2008), p. 127 et seq.; and Heussner, Informationssysteme im Europa¨ischen Verwaltungsverbund (Mohr Siebeck, 2007), p. 190 et seq.

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authorities, Articles 87 or 88 TFEU may be used as a legal basis, not the immigrationrelated provision of Article 77 TFEU. 11 It follows from constitutional considerations (see above MN 8) that national consulates will regularly process visa applications. Nevertheless, Article 77(2)(a) TFEU allows for the adoption of a wide range of different measures through which the EU can support the effective application of common rules or better transnational cooperation among Member States (see above MN 7). The principle of subsidiarity will not usually stand in the way of such measures which contribute to the overall objective of efficient border monitoring (see above MN 6). On this basis, an enhanced degree of practical cooperation can be achieved, for instance through the joint accommodation of consulates from different Member States in a single building, representation arrangements or the so-called local Schengen-cooperation.38 Such enhanced transnational cooperation can achieve widespread practical convergence, but stays short of the threshold of federal EU consulates from a constitutional perspective in which EU officials would decide individual visa applications for the Schengen area as a whole.39 In the absence of any textual indication to the contrary (see above MN 8), it is to be assumed that neither Article 77 TFEU nor the proviso for the External Action Service40 provides a sufficient legal basis for a move in this direction: EU consulates would require a formal Treaty change under Article 48 TFEU. 12 Article 77(2)(a) TFEU does not confine itself, in contrast to previous versions, to visas for intended stays of no more than three months41 employing the open formulation ‘short-stay’ instead. The EU legislature retains a certain flexibility, as a result, to lay down other time limits for the definition of short stays, which could concern, for instance, a period of five months.42 The interpretation of the term ‘short-stay’ should be oriented at the historic example of the Schengen visa for three months, while acknowledging that today’s open formulation grants more flexibility. A period of a few months is therefore covered by Article 77 TFEU with the exact delimitation remaining the prerogative of the legislature. In any case, the general scheme of Treaty rules demonstrate that, read in conjunction, the provisos for ‘short-stay’ permits in Article 77(2)(a) TFEU and ‘long-term’ permits in Article 79(2)(a) TFEU allow for the seamless regulation of immigration statuses (see Thym, Legal Framework for EU Immigration Policy, MN 11). Rules on economic migration, by contrast, are always covered by Article 79 TFEU as lex specialis irrespective of whether admission for purposes of employment concern longer or shorter stays, such as in the case of the Seasonal Workers Directive 2014/36/EU.43 It is generally irrelevant for the delimitation of Articles 77 and 79 TFEU 38

Cf. Articles 8, 37–48 Visa Code Regulation (EC) No. 810/2009. See Thym, Migrationsverwaltungsrecht, p. 347–352; and Laas, Die Entstehung eines europa¨ischen Migrationsverwaltungsraumes (Nomos, 2008), p. 139–144. 40 Article 27(2) TEU contains no indication that joint visa application centres with EU officials acting on behalf of the Member States are covered by the legal basis for the European External Action Service, which, as an integral part of the Common Foreign and Security Policy, must be interpreted in line with Article 40 TEU not to undermine supranational policies, such as immigration and asylum; at present, Decision 2010/ 427/EU (OJ 2010 L 201/30) on the European External Action Service does not cover visas anyway. 41 Cf. Article 63(2) EC Treaty as amended by the Treaty of Amsterdam (OJ 1997 C 340/173). 42 Similarly, see Weiß, Article 77 TFEU para 7; Peers, EU Justice, p. 236, 172–173; Muzak, Article 77 TFEU para 14; and Weber, ‘Migration im Vertrag von Lissabon’, Zeitschrift fu¨r Ausla¨nderrecht 2008, p. 55, 56; before the entry into force of the Lisbon Treaty, the Commission had proposed a six-month definition which caused some legal debates; cf. COM(2001) 388 (repealed in accordance with OJ 2006 C 64/3). 43 This conclusion rests upon the place of the opening clauses in Article 79(5) TFEU and the historic distinction between short-stay Schengen visas for tourists and entries for other purposes, including access to the labour market that resonates with the term ‘immigration’ (see Thym, Legal Framework for EU Immigration Policy, MN 7 and the legal base mentioned in the introductory paragraph of the Seasonal Workers Directive 2014/36/EU); in practice, the distinction has little relevance, since the ordinary 39

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whether a permit is handed out by a consulate in a third state as a ‘visa’ or granted by domestic immigration authorities as a ‘permit.’44 Article 77(2)(a) TFEU concerns abstract rules on visas, including the rejection of an 13 application for reasons of public policy or security (see Meloni, Regulation (EC) No 810/2009 Article 32 MN 3). By contrast, the denial of entry to individuals on foreign policy grounds on the basis of Resolutions of the UN Security Council or autonomous sanctions agreed upon by the EU institutions, does not come within the reach of Article 77 TFEU, since there is a lex specialis for restrictive measures against individuals and third states in Article 215 TFEU and corresponding Treaty rules on the Common Foreign and Security Policy.45 Such foreign policy decisions apply to all Member States, including the United Kingdom, Ireland and Denmark (see above MN 5); they must be respected when applying the Visa Code Regulation or respective national rules in the UK, Ireland or Denmark. It is settled ECJ case law that the EU acquires an exclusive external treaty-making 14 power whenever international treaties may affect common rules or alter their scope.46 Member States cannot conclude any longer, without an express authorisation by the EU legislature,47 international agreements with third states on visa exemptions.48 Existing agreements continue to apply, but can no longer be amended (see Hailbronner/Thym, Constitutional Framework, MN 58). This entails that the occasionally protracted, diplomatic negotiations with third states on reciprocal visa waivers have become an exclusive EU competence for the Schengen area.49 Whenever the negotiations lead towards the joint conclusion of readmission and visa facilitation agreements, Article 79(3) TFEU must be activated as a complementary legal basis (see Thym, Legal Framework for EU Immigration Policy, MN 22–23). The EU institutions retain a principled discretion, like in the case of unilateral visa requirements (see above MN 10), whether and, if yes, under which conditions a visa waiver shall be granted; they can, in particular, insist upon reciprocal exemptions or embrace strategic foreign policy considerations in line with the Common Foreign and Security Policy. In accordance with settled ECJ case law, the demarcation of different legal bases 15 follows the aims and components of the measure in question; whenever there are multiple aims and components, the central elements prevail over incidental aspects if the measure has an identifiable focus.50 This entails that corollary rules on migration in bi- or multilateral trade agreements, such as the General Agreement on Trade in Services (GATS), are covered by the exclusive Union competence for the Common Commercial Policy.51 In the case of the GATS, the Annex on Movement of Natural Persons lays down expressly that it shall not prevent states from applying measures legislative procedure applies to Articles 77 and 79 TFEU; see also Weiß, Article 77 TFEU para 28; Muzak, Article 77 TFEU para 33; and Bast, Aufenthaltsrecht, p. 152–154. 44 Article 77(2)(a) and 79(2)(a) TFEU cover both ‘visas’ and ‘permits;’ both provisions are to be distinguished on the basis of the length of stay. 45 Peers, EU Justice, p. 155 does not really explain why he wants to apply Article 77 TFEU instead. 46 See Article 3(2) TEU; and Martenczuk, ‘Visa Policy and EU External Relations’, in: ibid./van Thiel (eds), External Relations, p. 36–42. 47 Cf. Article 2(1) TFEU. 48 See Martenczuk, ibid., p. 44–45; and Kuijper, ‘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, 365. 49 On political difficulties, see the contributions to Bigo/Carrera/Guild (eds), Foreigners, Refugees or Minorities? Rethinking People in the Context of Border Controls and Visas (Ashgate, 2013). 50 Cf. ECJ, Commission vs. Council (ECOWAS), C-91/05, EU:C:2008:288, para 73. 51 See Articles 206–207 TFEU; and Martenczuk, ‘Visa Policy and EU External Relations’, in: ibid./van Thiel (eds), External Relations, p. 36, 48–49.

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regulating the entry and stay of natural persons including visa requirements.52 Similar corollary rules on migration in other agreements on trade or development cooperation53 will be covered by Articles 206–210 TFEU as well, while the move towards legally binding mobility partnerships with extensive rules on visa waivers or related questions would have to be based on Articles 77 and 79 TFEU (see Thym, Legal Framework for EU Immigration Policy, MN 23). By contrast, legislation on the status of service providers from third countries will be covered by Article 78(2)(a) TFEU for short stays or Article 79(2)(a) for longer periods if the legislation concentrates on the immigration status of the persons concerned (not on trade-related rules).54 Whenever international treaties concluded by the EU command visa free access, they have precedence over secondary Union legislation in cases of conflict (see Hailbronner/Thym, Constitutional Framework, MN 56–57). b) External Border Controls. The original Schengen Implementing Convention contained detailed rules on external border controls which, as so-called flanking measures, were meant to compensate states for the loss of control over their internal borders (see above MN 3). An interpretation of the term ‘external border’ in the light of the historic context exhibits that it refers to the Member States participating in the Schengen cooperation (see above MN 5) – not the geographic scope of Union law in accordance with Articles 52 TEU and 355 TFEU.55 This entails that, for the purposes of entry control, the border between France and the United Kingdom has to be qualified as an ‘external border’ with regard to which Article 77(2)(b) TFEU allows for the adoption of common control standards which can mainly be found in the Schengen Borders Code Regulation (EC) No 562/2006. Nothing in the wording of the Treaty provision suggests that border controls should be conducted in the territorial waters nor at the international border only, i. e. they can extend to the contiguous zone or the high seas whenever this is necessary for border control purposes. 17 The EU legislature benefits from a principled discretion when deciding upon the intensity of border control standards. It can prescribe, as it can be the case of visas (see above MN 10), detailed procedural and substantive guidelines, such as security features for passports, that contribute to the overall objective of efficient border monitoring (see above MN 6). Of course, EU rules must comply with human rights in the EU Charter, which apply to domestic control activities in accordance with ECJ case law only when Member States are implementing Union law (see below MN 31).56 Moreover, the EU legislature may decide that border control activities can contribute simultaneously to search and rescue measures on the high seas beyond the territorial borders of the Member States,57 while autonomous search and rescue operations that are not connected to border controls in a wider sense cannot be based upon Article 77(2)(b) TFEU alone.58 More stringent requirements exist for Union citizens and third country 16

52 See OJ 1994 L 336/205; and Charnovitz, ‘Trade Law Norms on International Migration’, in: Aleinikoff/Chetail (eds), Migration and International Legal Norms (T.M.C. Asser, 2003), p. 241–255. 53 This was explicitly confirmed by ECJ, Commission vs. Council, C-377/12, EU:C:2014:1903, paras 58–59. 54 Cf. the indication of a possible proposal by COM(2015) 240, p. 15. 55 Similarly, see Muzak, Article 77 TFEU para 38; and Weiß, Article 77 TFEU para 20. 56 Specifically for border controls, see ECJ, Commission vs Spain, C-503/03, EU:C:2006:74; and ECJ, MRAX, C-459/99, EU:C:2002:461. 57 Cf. Articles 3 and 7 Sea Borders Regulation (EU) No. 656/2014 on search and rescue operations during or in the context of border control activities. 58 In practice, search and rescue operations in the Mediterranean or the Black Sea will almost always be sufficiently close to the external EU borders to be covered by Article 77(2)(b) TFEU for as long as search and rescue does not become an end in itself with autonomous personnel and equipment; one may consider to activate Article 352 TFEU for independent search and recue units.

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nationals family members that command precedence over the border control regulations in cases of conflict, since they emanate from the fundamental freedoms enshrined at Treaty level (see Thym, Legal Framework for EU Immigration Policy, MN 31). Differential control requirements for other status groups are permissible for as long as all Union citizens, including British and Irish nationals, are treated equally irrespective of nationality at the external Schengen borders.59 c) Intra-European Free Movement. The original Schengen Agreements and today’s 18 EU immigration policy are defined by a continued asymmetry: despite the abolition of internal border controls, rules on the entry and residence are not fully harmonised; residence permits for third-country nationals are often confined to the territory of one Member State.60 Foreigners residing legally in a Member State do not have, as a result, a generic right to visit other Member States. Article 77(2)(c) TFEU addresses this gap and allows the EU legislature to regulate ‘travel within the Union for a short period.’ Such rules on temporary free travel within the Schengen area complement the common visa policy, which, in contrast to Article 77(2)(c) TFEU, concerns third-country nationals living outside of the Schengen area.61 The corresponding legislation replacing earlier provisions of the Schengen Implementing Convention was adopted a few months after the entry into force of the Treaty of Lisbon, which established an unequivocal legal basis for such measures.62 While Article 77 TFEU covers short-term travel, Article 79 TFEU must be activated for legislation on longer stays in another Member State (see Thym, Legal Framework for EU Immigration Policy, MN 18). d) Integrated Border Management System. It was a deliberate decision to introduce 19 a specific legal basis for the gradual establishment of an integrated border management system in Article 77(2)(d) TFEU complementing rules on standards and procedures for border controls, including corollary search and rescue obligations in the environment of the external borders (see above MN 16–17).63 The introduction of a new Treaty provision reflects the will of the High Contracting Parties to integrate national border control systems;64 it was meant to supplement prior competences in order to allow for the ‘gradual establishment’ of a higher degree of cooperation.65 The open formulation underlines that cooperation is not confined to the external Schengen borders and can embrace, in line with the multilevel control concept (see above MN 6), extraterritorial activities and cooperation with third states (see below MN 30). EU activities on the basis of Article 77(2)(d) TFEU can embrace legislative harmonisation, support for transna59 In accordance with Article 18 TFEU, nationals of the Member States with an opt out (see above MN 5) must be treated equally when entering the Schengen area, i. e. they can use the control line for EU citizens (not: Schengen citizens); see Thym, Ungleichzeitigkeit und Europa¨isches Verfassungsrecht (Nomos, 2004), p. 254–258, available online at http://www.ungleichzeitigkeit.de [last accessed 1 November 2015]. 60 This applies both to residence permits for which no EU harmonisation exists and for rights to reside in accordance with EU immigration directives, since the latter do not embrace a generic right to free movement within the EU; see Thym, Legal Framework for EU Immigration Policy, MN 18. 61 Residence in the UK or Ireland counts as an extra-Schengen residence for the purposes of Article 77 TFEU, while Denmark is bound by the rules as a matter of public international law (see above MN 5); third-country nationals living in the UK or Ireland (not: Denmark) must, therefore, apply for a Schengen visa to visit France, since they are covered by Article 77(2)(a) TFEU, not part C. 62 See Regulation (EU) No. 265/2010 (OJ 2010 L 85/1). 63 By contrast, Article 62(2)(a) EC Treaty as amended by the Treaty of Amsterdam of 2 October 1997 (OJ 1997 C 340/173) contained only a generic provision for control standards and procedures. 64 Cf. the political debate in the European Convention that led to the new provision summarised in the Final Report of Working Group X, doc. CONV 426/02 of 2 December 2002. 65 See Ladenburger/Verwirlghen, ‘Policies Relating to the Area of Freedom, Security and Justice’, in: Amato/Bribosia/de Witte (eds), Gene`se et destine´e de la Constitution europe´enne (Bruylant, 2007), p. 743, 763.

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tional cooperation, the coordination of public procurement, financial support or other measures with an impact upon border controls (see above MN 7). 20 It is well known that the borders agency Frontex is the most tangible expression of a move towards an integrated border management system. The Frontex Regulation (EC) No 2007/2004 realises many of the instruments mentioned above, including the Rapid Border Intervention Teams (RABITs) when border guards from different Member States collaborate with regard to a specific challenge. It is a common feature of the existing forms of cooperation to be confined to enhanced transnational cooperation (see above MN 8). With the active support of Frontex, national authorities join forces horizontally instead of merging into a federal border service.66 It can moreover be argued that – unlike the provision on visas (see above MN 11) – the ambitious formulation of Article 77(2)(d) TFEU to allow for ‘any measure necessary for the gradual establishment’ of an integrated management system (French: toute mesure ne´cessaire pour l’e´tablissement progressif; German: schrittweise … eingeführt werden soll) establishes a sufficient legal basis for at least certain features of a federal border guard.67 Indeed, abstract visions of a ‘border corps’ were on the table during the drafting process in the European Convention.68 Closer inspection shows, however, that such abstract calls did not necessarily imply the creation of a federal bureaucracy:69 the reference to an ‘integrated border management system’ was widespread in political debates at the time but was used, in essence, to describe the move towards Frontex and RABITs.70 The drafting history demonstrates, therefore, that Article 77(2)(d) TFEU establishes a legal basis for the progressive evolution of the Frontex agency and related instruments that can, also in future, provide for enhanced transnational cooperation short of the move towards a federal EU border guard.71 By contrast, the creation of a truly federal European border guard replacing national authorities would require Treaty change in accordance with Article 48 TEU. 21 In line with the classification of Article 77 TFEU as a shared competence (see above MN 7), the Member States retain the option to cooperate bilaterally in order to support the effective functioning of the multilevel border control system. Protocol (No. 31) on External Relations of the Member States with regard to the Crossing of External Borders mandates, in this respect, that Article 77 TFEU ‘shall be without prejudice to the competences of Member States to negotiate or conclude agreements with third countries…’72 This entails that the EU does not possess, in contrast to other areas (see 66 See Scho ¨ ndorf-Haubold, ‘Europa¨isches Sicherheitsverwaltungsrecht’, in: Terhechte (ed), Verwaltungsrecht der Europa¨ischen Union (Nomos, 2011), § 35 paras 85–97; Thym, Migrationsverwaltungsrecht, p. 347–352; and Costello, ‘Administrative Governance and the Europeanisation of Asylum and Immigration Policy’, in: Hofmann/Tu¨rk (eds), EU Administrative Governance (Elgar, 2006), p. 287, 322. 67 Remember that, in line with general principles (see above MN 8), specific legal bases can provide for a move towards a federal administration replacing, in part at least, domestic authorities. 68 See, again, the Final Report of Working Group X, doc. CONV 426/02 of 2 December 2002, p. 17; and the explanation to the initial proposal of today’s Article 77(2)(d) TFEU by the Convention Presidium in doc. CONV 614/03 of 14 March 2003, p. 19. 69 Cf. the synthesis report of the plenary meeting of the European Convention on 3 and 4 April 2003 in doc. CONV 677/03 of 9 April 2003, p. 5–6. 70 Cf. the title and the contents of Commission Communication, COM(2002) 233 as well as the action plan in Council doc. 10019/02 of 13 June 2002, p. 11 et seq.; Monar, ‘Die Vertragsreformen von Lissabon in den Bereichen Inneres und Justiz’, Integration 2008, 379, 385 shows how the political debate at the time influenced the thinking in the European Convention – in a comparable way as in the case of the European Defence Agency, which Article 45 TEU codified in parallel to ongoing political discussions. 71 Similarly, see Weber, ‘Migration im Vertrag von Lissabon’, Zeitschrift fu ¨ r Ausla¨nderrecht 2008, p. 55, 56; and Peers, EU Justice, p. 156–157; in contrast to ter Steeg, Einwanderungskonzept, p. 416 et seq.; for a study on different options, see Ryan, Frontex Regulation, Article 1 MN 5. 72 See OJ 2008 C 115/304; protocols are an integral part of primary law in accordance with Article 51 TEU.

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above MN 14), an exclusive competence for agreements concerning border controls with third states; it has the power to conclude such agreements, but cannot prevent Member States from doing the same. In other words, the said Protocol (No. 31) preempts the emergence of an exclusive external Community competence.73 It stipulates, moreover, that agreements of the Member States must ‘respect Community law and other relevant international agreements’, i. e. the Commission could start infringement proceedings whenever they fall foul of EU law, including human rights (see below MN 36). The latter caveat may be particularly relevant in situations where Member States cooperate with third states that serve as transit countries for asylum seekers trying to reach Europe (see below MN 28–30). e) Absence of Internal Border Controls. The abolition of internal border controls 22 was the historic starting point of justice and home affairs cooperation (see above MN 1). Given that Article 26 TFEU does not mandate in itself the abolition of internal border controls,74 today’s Article 77(1)(a) TFEU lays down an original and explicit obligation for border free travel.75 Corresponding rules can be adopted in accordance with Article 77(2)(e) TFEU which serves as a legal basis for the relevant aspects of the Schengen Borders Code Regulation (EC) No 562/2006, including provisions for the phased abolition of border controls towards new Member States after accession (see above MN 1). The term ‘internal border’ should be understood as the counterpart of the ‘external border’ and remains limited, therefore, to borders within the Schengen countries (see above MN 16). The abolition of border controls concerns administrative control procedure only and does not establish a universal right to cross the internal borders, in particular with regard to third-country nationals; rules governing the right of third-country nationals to cross internal borders can be adopted by the EU legislature and, whenever there are no supranational standards, by the Member States on the basis of their residual competences (see above MN 18). It is inherent in the objective to ‘develop a policy’ (Article 77(1) TFEU) on the basis 23 of the ordinary legislative procedure (Article 77(2) TFEU) that the abolition of internal border controls can be subject to certain caveats to be decided upon during the legislative process, in particular the temporary reintroduction of internal border controls. Corresponding rules limiting the discretion of the Member States and establishing a supranational oversight procedure can be found in the Schengen Borders Code (see Epiney/Egbuna-Joss, Regulation (EC) No 562/2006 Articles 23–31) and have been subject to an ECJ judgment limiting the room of manoeuvre for Member States, while confirming, implicitly at least, that rules in EU legislation on the temporary reintroduction of border controls are compatible with Article 77(2)(e) TFEU.76

3. Travel Documents (Article 77(3) TFEU) Article 77(3) TFEU is not directly related to the EU visa policy, since it concerns 24 Union citizens and not third-country nationals. The provision was originally meant to be integrated into the Treaty chapter on Union citizenship, but was referred to the area of freedom, security and justice at a later stage of the drafting process for reasons that are not immediately clear.77 It shall only apply, in line with the express wording, when other 73 Similarly, see Hailbronner, Immigration, p. 65–66; Pastore, Visas, p. 103–104; Muzak, Article 77 TFEU para 6; Peers, EU Justice, p. 222–223; and Weiß, Article 77 TFEU para 25. 74 Cf. ECJ, Wijsenbeek, C-378/97, EU:C:1999:439, para 40. 75 From a legal perspective, the abolition of the Schengen area would require, therefore, a formal Treaty change under Article 48 TEU. 76 See ECJ, Melki & Abdeli, C-188/10 & C-189/10, EU:C:2010:363. 77 Cf. Article III-125(2) Treaty establishing a Constitution for Europe of 24 October 2004 (OJ 2004 C 310/1), which never entered into force; the provision was later referred to the justice and home affairs

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legal bases do not provide for supranational measures. If it is correct that the rules on external border controls can embrace far-reaching prescriptions, such as security features for passport (see above MN 17),78 Article 77(3) TFEU retains a limited scope. It could be activated, for instance, to formalise the existing resolutions of representatives of the Member States’ governments on a uniform pattern for EU passports or on security features for ID cards.79 The special legislative procedure, which requires unanimity among Member States, ensures that Article 77(3) TFEU will not be activated extensively.

III. Overarching Principles 1. Maintenance of Law and Order Article 72 TFEU mandates that the Treaty provisions on the area of freedom, security and justice (not only those immigration and asylum) ‘shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.’ The exact meaning of the proviso is subject to some controversy that can be traced back to the predecessor provisions in the Treaties of Maastricht and Amsterdam,80 while a provision limiting judicial oversight by the ECJ and an additional emergency clause allowing for the adoption of provisional measures by the Council were discontinued by the Treaty of Lisbon.81 26 Some commentators have argued that the caveat in today’s Article 72 TFEU should be construed, in parallel to the public policy exception to the fundamental freedoms,82 as a justification for non-compliance with EU legislation whenever the maintenance of law and order was at stake; the ECJ would be responsible for judicial oversight including a strict proportionality assessment, like in the case of the fundamental freedoms.83 This interpretation is difficult to sustain for a number of reasons (and has not been followed by the practice of the EU institutions so far), although the arguments do not present us with a clear-cut answer and the interpretation of the provision therefore remains subject to some uncertainty: Firstly, the wording of Article 72 TFEU differs from the public policy exceptions to the fundamental freedoms.84 Secondly, the constitutional context differs, since the Treaty provisions on the area of freedom, security and justice are primarily concerned with the division of competences between the Member States and the EU level – not with limits to individual rights in parallel to the fundamental freedoms enshrined at Treaty level.85 Thirdly, the provision does not clearly indicate 25

chapter by the mandate for the Intergovernmental Conference preparing the Treaty of Lisbon in accordance with the annex to Council doc. 11177/07 of 23 June 2007, No. 19(d). 78 Cf. Regulation (EC) No. 2004/2252 (OJ 2004 L 385/1); and Peers, EU Justice, p. 152–154. 79 The Resolution of the representatives of the Governments of the Member States meeting within the Council of 8 June 2004 (OJ 2004 C 245/1) and on security features for ID cards in accordance with Council doc. 15356/06 of 15 November 2006 are not legally binding as a matter of EU law at present. 80 See Article K.2 EU Treaty as amended by the Treaty of Maastricht of 7 February 1992 (OJ 1992 C 191/1) and the Amsterdam version of Articles 64(1) and 68(2) EC Treaty (OJ 1997 C 340/173). 81 Cf. the previous Article 64(2) EC Treaty, ibid. 82 See, for the free movement of goods, Article 36 TFEU; and, for workers, Article 45(3) TFEU. 83 See Battjes, European Asylum Law and International Law (Martinus Nijhoff, 2006), p.157; ThunHohenstein, Der Vertrag von Amsterdam: die neue Verfassung der EU (Manz, 1997), p. 31; and Weiß, Article 72 TFEU para 2. 84 Article 72 TFEU does not employ the well established term ‘public policy’ in the English language version and speaks instead, rather vaguely, of the ‘maintenance of law and order’, while the French (ordre public) and German (o¨ffentliche Ordnung) language version emulate well-established terminology. 85 See Hailbronner/Thym, Constitutional Framework, MN 15, 20; and Hailbronner, Immigration, p. 100–102, although it should be noted that other Treaty articles, such as Articles 345-347 TFEU contain

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that Member State should be allowed to deviate from EU legislation, although such permission would undermine the effet utile of EU legislation and render more difficult to realise the Treaty objectives. Even if Article 72 TFEU was not interpreted to authorise temporary non-compliance 27 with EU rules, it would not be void of meaning. It could be conceived of not as a freestanding exception to EU legislation but as a reminder that detailed rules in corresponding EU legislation should leave breathing space for Member States when it comes to the maintenance of law and order and the safeguarding of internal security.86 Article 72 TFEU could serve as an interpretative guideline for other Treaty articles and rules in secondary legislation effecting the maintenance of law and order,87 thereby reinforcing the impact of the principles of subsidiarity and proportionality (see above MN 7). In practice, existing EU legislation on immigration and asylum regularly provides for provisions concerning the maintenance of law and order, such as rules in the Schengen Borders Code concerning the temporary reintroduction of internal border controls (see above MN 23) or the rejection of visas or residence permits on public policy grounds (see above MN 13).

2. External Relations In its strategic guidelines for legislative and operational planning in accordance with 28 Article 68 TFEU, the European Council has repeatedly called upon EU institutions to reinforce cooperation with third states. The current Ypres Guidelines by the European Council (see Hailbronner/Thym, Constitutional Framework, MN 8–9) particularly emphasise the relations with third states and stress the relevance of the Global Approach to Migration and Mobility.88 Corresponding external competences for cooperation with third states exist in all areas covered by Articles 77–80 TFEU, since the EU institutions acquire, in line with settled ECJ case law, an exclusive external treaty-making power for international agreements with third states or International Organisations after the adoption of secondary legislation insofar as the international treaties may affect supranational rules or alter their scope (see above MN 14). These implied powers are complemented with an express competence for readmission agreements (see Thym, Legal Framework for EU Immigration Policy, MN 22) and are subject to a minor caveat regarding border controls (see above MN 21). The internal decisionmaking procedure follows Article 218 TFEU that provides for the consent of the European Parliament to agreements immigration and asylum.89 In practice, the European Union has agreed to the far-reaching association of 29 Norway, Iceland and Switzerland (as well as Liechtenstein) with the Schengen acquis, including the abolition of internal border controls.90 This legal construction implies that the participation of these countries in the Schengen law rests upon international overarching exceptions, which are not confined to justifying restrictions to individual rights; see also ECJ, Dory, C-186/01, EU:C:2003:146, para 31. 86 See Hailbronner, Immigration, p. 102 87 In extreme scenarios, it could result in the annulment of legislation leaving no leeway whatsoever to Member States in an area that is crucial for the maintenance of law and order, in particular with regard to judicial and police co-operation in criminal matters to which Article 72 TFEU applies as well. 88 See European Council, doc. EUCO 79/14 of 27 June 2014, para 8. 89 In line with Article 218(6)(a)(v) TFEU, the European Parliament must give its consent whenever the ordinary legislative procedure applies internally, like in the case of Articles 77–79 TFEU. 90 In the case of Norway and Iceland, Protocol (No. 19) on the Schengen acquis (OJ 2008 C 115/290) provides for a specific legal basis that obliges the EU institutions to agree to an agreement; see Kuijper, ‘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, 350.

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agreements concluded by the EU institutions in recent years,91 not upon EU membership. During the negotiations, the EU institutions insisted upon an obligation of the associated countries to apply any future EU legislation building upon the Schengen acquis, even if it is adopted after the entry into force of the agreement.92 Their ministers cannot participate in the deliberations of new instruments at Council level, although the so-called Mixed Committee provides a forum for an exchange of views.93 Since the association agreements establishes international legal obligations, the reciprocal commitments rest upon international legal obligations and courts from the associated countries cannot refer questions of interpretation to the ECJ, although they are obliged to follow its case law as a matter of principle.94 30 In the future, more specific agreements concerning various aspects of entry and border control policies could be concluded with third states, in particular those in the immediate neighbourhood of the European Union, as instruments supporting the objective for efficient border monitoring.95 In recent years, there have been various examples of international cooperation between EU institutions and the borders agency, mostly below the threshold of legally binding commitments.96 These supranational initiatives are often complemented by bilateral arrangements at national level with neighbouring third states, such as the former, highly controversial former cooperation of Italy with Libya97 or the existing arrangements between Poland and Ukraine.98 At the time of writing, the EU was negotiating with Turkey to enhance bilateral cooperation on border control and asylum issues. Such border control initiatives are often integrated into the wider reorientation of European immigration and asylum policy aiming to make international migration governance more effective, among other things through the conclusion of legally binding readmission and/or visa facilitation agreements (see above MN 14) as well as high-profile initiatives such as mobility partnerships (see Thym, Legal Framework for EU Immigration Policy, MN 60).

IV. Human Rights and International Law 31

EU immigration and asylum law is firmly embedded in the constitutional framework of the EU Treaties, including human rights. From a doctrinal perspective, the rights and 91 See the Agreement concluded by the Council with Norway and Iceland (OJ 1999 L 176/36), which entered into force on 26 June 2000 (OJ 2000 L 149/36); and the Agreement between the EU, the EC and the Swiss Confederation (OJ 2008 L 53/52), which entered into force on 1 March 2008 (OJ 2008 L 53/18) together with the Protocol No. 1 on the accession of Liechtenstein, which entered into force on 19 December 2011 (OJ 2011 L 333/27); for further comments, see Filliez, ‘Schengen/Dublin’, in: Martenczuk/van Thiel (eds), External Relations, p. 145–186. 92 Cf. Article 2(3) of the said agreements, ibid. 93 See Articles 3–7 of the Agreement with Switzerland, ibid., and Articles 3–8 of the Agreement with Norway and Iceland, ibid.; for the institutional practice, see Wichmann, ‘The Participation of the Schengen Associates: Inside or Outside?’, EFA Rev. 11 (2006), p. 87–107. 94 See See Articles 8–9 of the Agreement with Switzerland, ibid., and Articles 10–11 of the Agreement with Norway and Iceland, ibid. 95 On the broader picture, see Thym, ‘Towards International Migration Governance?’, in: Van Vooren et al. (ed), The Legal Dimension of Global Governance: What Role for the EU? (OUP, 2013), p. 289–305. 96 See the contributions to Martin (ed), La gestion des frontie `res exte´rieures de l’Union europe´enne (Pedone, 2011). 97 See Marchetti, ‘Expanded Borders: Policies and Practices of Preventive Refoulement in Italy,’ in: Geiger/Pe´coud (eds), The Politics of International Migration Management (Palgrave Macmillan, 2010), p. 160–183. 98 See Kaca, ‘EU Ukraine Cooperation in Justice and Home Affairs’, in: Snyder/Thym (eds), Europe – A Continent of Immigration? Legal Challenges in the Construction of European Migration Policy (Bruylant, 2011), p. 197–223.

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principles enshrined in the Charter of Fundamental Rights serve as the primary yardstick for the judicial review of EU legislation, both where its validity is at stake or where it is interpreted in conformity with human rights. While the EU institutions must respect the Charter in all their activities, the Member States are bound only when implementing Union law (see Hailbronner/Thym, Constitutional Framework, MN 47– 48). In specific scenarios, the interpretation of the EU Charter by the ECJ typically follows the case law of the ECtHR on the ECHR, although the ECJ is not formally obliged to follow the Strasbourg court (see ibid., MN 51). In contrast to international human rights law and the Geneva Convention, international agreements of the Member States to which the EU has not formally acceded do not form part of the EU legal order as a matter of principle (see ibid., MN 58–59). On the basis of these general principles, this section focuses on the human rights dimension of EU instruments on entry and border controls discussed in this chapter.

1. (No) Right to Enter EU Territory As starting point of its case law, the ECtHR maintains to this date that the 32 contracting states enjoy ‘as a matter of well-established international law and subject to their treaty obligations [the right] to control the entry, residence and expulsion of aliens.’99 This assertion of state sovereignty over the entry and stay of foreigners reflects the classic position of public international law, since human rights have traditionally been conceived as guarantees within existing states and not for transnational movement;100 migration-related questions had originally been left outside the scope of the European Convention deliberately.101 It is not surprising, therefore, that the Strasbourg institutions remained largely silent on migration in the first 30 years of their existence. This has changed significantly ever since the 1990s when judges in Strasbourg started activating Articles 3 and 8 ECHR to limit the traditional notion of state discretion in migratory matters. At an abstract level, we may distinguish two situations: firstly, Article 3 ECHR serves 33 as the central guarantee against mistreatment in the country of origin asking European states to provide shelter (see Hailbronner/Thym, Legal Framework for EU Asylum Policy, MN 57–59); secondly, migrants can bring forward a claim under Article 8 ECHR against European countries they are living in to protect their private or family life without primary consideration of the situation in countries of origin (see Thym, Legal Framework for EU Immigration Law, MN 53–55). In short: refugees are protected against refoulement under Article 3 ECHR, whereas Article 8 ECHR is based upon legitimate ties migrants developed during the period of residence in their European host state. With regard to entry controls at the external border, Article 3 ECHR serves as the central yardstick (see below MN 34–35), since Article 8 ECHR can give rise to the primary right to admission for purposes of family reunion only in exceptional circum99 This standard formula was first used in ECtHR, judgment of 18 February 1991, No. 12313/86, Moustaquim v. Belgium, para. 43; see also Sarole´a, Droits de l’homme et migrations (Bruylant, 2006), p. 331–335. 100 See Hailbronner/Gogolin, ‘Aliens’, in Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, online edition, paras 14–22, available at http://www.mpepil.com [last accessed 24 November 2015]; and Jennings/Watts, Oppenheim’s International Law, Vol. II, 9th edn (OUP, 2008), chs 6 & 9. 101 The travaux pre ´paratoires show that the issue of asylum was discussed but not regulated, also with a view to on-going discussion on the 1951 Refugee Convention, while legal migration was considered to fall within the domaine re´serve´e of state sovereignty, which only carefully drafted international norms – such as Articles 2 and 4 Additional Protocol No. 4 to the ECHR – would selectively limit; see Uibopou, ‘Der Schutz des Flu¨chtlings im Rahmen des Europarats’, Archiv des Vo¨lkerrechts 21 (1983), p. 60, 61–64.

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stances (see Thym, Legal Framework for EU Immigration Law, MN 51). These considerations can be extended to the EU Charter, since Articles 4 and 7 of the latter have to be interpreted in line with the ECtHR case law.102 34 International human rights law confirms the principled freedom of states to control their borders and to regulate the entry and stay of foreigners.103 Only nationals (and possibly certain categories of long-term residents) benefit from a guarantee not to be arbitrarily deprived of the right to enter their ‘own country.’104 Neither treaty obligations nor customary international law have so far brought about an authoritative basis for a generic human right to enter other states or not to be refused entry arbitrarily in situations others than those related to family unity and refugee protection.105 In short: there is no generic right to enter foreign states in international human rights law, while those residing in another country benefit from civil, economic, social and cultural rights.106 Even those with illegal residence status have certain guarantees on their side.107 35 EU legislation can provide for more far-reaching individual rights in situations where human rights do not contain such guarantee. Corresponding statutory rights of migrants to be allowed entry to the EU territory have been recognised by the ECJ in various instances, in particular with regard to uniform visas under the Schengen Visa Code (see Meloni, Regulation (EC) No 810/2009 Article 32 MN 3) and for more specific guarantees for family reunion and for students. In so far as these statutory guarantees go beyond human rights requirements, the demarcation of the precise scope remains the prerogative of the EU legislature whose position judges have to identify under recourse to general interpretative standards for EU immigration and asylum law (see Hailbronner/Thym, Constitutional Framework, MN 15). In accordance with Article 47 of the Charter (see Hailbronner/Thym, ibid., MN 37), EU legislation also provides for a right to appeal against the refusal of entry at the external borders or the rejection of an application for a uniform visa (see Meloni, Regulation (EC) No 810/2009 Article 32 MN 5), although applicants do not have the right to enter the EU territory provisionally pending the outcome of their application (see Epiney/Egbuna-Joss, Regulation (EC) No 562/2006 Article 13 MN 4–5). 36 In relation to refugees, the mandatory respect for the Geneva Convention and human rights (see above MN 31) requires Member States not to violate these obligations when implementing EU policies on border controls and visas. In line with Article 51 of the EU Charter, it has to be assessed on a case-by-case basis whether national border control activities are to be considered an implementation of Union law to which EU fundamental rights standards apply (see Hailbronner/Thym, Constitutional Framework, MN 47–48).108 Express provisions in EU legislation on the necessary respect for refugee 102 On the parallel interpretation of Article 8 ECHR and Article 7 of the Charter, see ECJ, McB., C-400/ 10 PPU, EU:C:2010:582, para 53; correspondingly on Article 3 ECHR and Article 4 of the Charter, see ECJ, N.S. et al., C-411/10 & C-493/10, EU:C:2011:865, paras 86–88. 103 In classic international law, only complete closure to the outside world by totalitarian regimes could possibly be classified as being illegitimate; see Meloni, Visa Policy, p. 7–24. 104 Article 12(4) ICCPR, which possibly embraces certain long-term legal residents (but certainly not all foreigners); similarly, Article 3(2) Additional Protocol No. 4 to the ECHR. 105 See Martin, ‘The Authority and Responsibility of States’, in: Aleinikoff/Chetail (eds), Migration and International Legal Norms (T.M.C. Asser, 2003), p. 31–46; Perruchoud, ‘State Sovereignty and Freedom of Movement’, in: Opeskin et al. (eds), Foundations of International Migration Law (CUP, 2012), p. 123, 129–136; and the prospective considerations by den Heijer, Extraterritorial Asylum, p. 142–160. 106 See Weissbrodt, The Human Rights of Non-citizens (OUP, 2008); and Ryan/Mantouvalou, ‘The Labour and Social Rights of Migrants in International Law’, in: Rubio-Marı´n (ed), Human Rights, p. 177–211. 107 See Carlier, ‘Quelles Europes et quel(s) droit(s) pour quels migrants irre ´guliers?’, in: Leclerc (ed), Europe(s), droit(s) et migrants irre´guliers (Bruylant, 2012), p. XIII-XXVI. 108 This was ascertained for border controls by ECJ, Zakaria, C-23/12, EU:C:2013:24, paras 39–41.

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law and human rights, such as Article 3(b) Schengen Borders Code Regulation (EC) No 562/2006,109 confirm that entry and border control policies must be compatible with human rights and refugee law. These human rights guarantees are nowadays considered, by most observers, to include a prohibition, on the side of the states, to not reject those seeking asylum at the border.110 Officials are bound to comply with this obligation (see Epiney/Egbuna-Joss, Regulation (EC) No 562/2006 Article 2 MN 12– 18), which extends unequivocally to control activities at the internationally recognised borders, while the extraterritorial application to border controls on the high seas, in particular, remains disputed (see below MN 40). In the context of refugee protection, it is important to distinguish between non- 37 refoulement obligations and access to the asylum procedure, in particular in situations of extraterritorial state action. While the latter (access to the asylum procedure) implies an obligation, on the part of European states, to assess individual claims to asylum in an individualised procedure for the purpose of residence in the Member States after a positive decision, the former (non-refoulement) concerns the prohibition to return someone to a territory where he may be treated in violation of the Geneva Convention.111 This distinction could be relevant specially for those who are not covered by the EU asylum directives ratione loci, because they come within the jurisdiction of European states during extraterritorial border controls (see below MN 39). As long as non-refoulement obligations are met, these persons could be returned to a third state, or a certain part thereof, provided that they would not be confronted with a well-founded fear of persecution there. Against this background, it would be possible, from a legal perspective, for the EU legislature to establish by means of future legislation the conditions for relocating asylum seekers to a safe country or transit zones on the basis of agreements providing for credible guarantees for fair treatment,112 if necessary by supporting third states or international organisations in guaranteeing an adequate treatment of the returnees through financial or administrative support.113 On this basis, asylum reception centres could be established outside the EU territory but in compliance with the principle of non-refoulement (see Hailbronner/Thym, Legal Framework for EU Asylum Policy, MN 35).

2. Extraterritorial Scope The borders agency FRONTEX has become a symbol for the attempt, on the side of 38 the European Union, to promote the Treaty objective to ensure the ‘efficient monitoring of the crossing of external borders’ (see above MN 6). It participates in extraterritorial activities that critics denounce as an attempt to bypass the obligations under human rights and refugee law by preventing potential refugees from reaching the territorial 109 Even without an express provision respect would be mandatory, since EU legislation has to be interpreted in the light of primary law, see Hailbronner/Thym, Constitutional Framework, MN 14. 110 See Goodwin-Gill/McAdam, Refugee, p. 206–208; and Ka ¨lin/Caroni/Heim, in: Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. A Commentary (OUP, 2011), Article 33, para. 1 MN 105–109. 111 Explicitly on the distinction between obligations under Article 3 ECHR and subsidiary protection under the Asylum Qualification Directive 2011/95/EU, see ECJ, M’Bodj, C-542/13, EU:C:2014:2452, paras 39–40. 112 On the relevance of diplomatic assurances within the context of Article 3 ECHR, see Hailbronner/ Thym, Legal Framework for EU Asylum Policy, MN 57. 113 On Australia’s controversial ‘Pacific Solution’, see High Court (of Australia), Judgment of 11 April 2002, Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14, paras 42–44 and High Court (of Australia), Judgment of 31 August 2011, Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32.

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borders of the European Union.114 While it is beyond doubt that extraterritorial border controls must comply with the established principles of the law of the sea concerning safety and rescue of life,115 it remains unclear to what extent human rights and/or refugee law prescribe certain actions. What is certain is that Article 1 ECHR obliges state parties to secure the human rights ‘to everyone within their jurisdiction’ – a condition that is not limited to the state territory as such in accordance with settled ECtHR case law. In a number of judgments concerning extraterritorial military activities, judges in Strasbourg held that ‘in keeping with the essentially territorial notion of jurisdiction’ state activities beyond the territory amount to an exercise of jurisdiction ‘only in exceptional circumstances.’116 These instances can include situations of effective control of an area as a consequence of military action, authority over an individual through estate agents (e. g. kidnapping) or ‘the activities of its diplomatic or consular agents abroad and on board craft and vessels.’117 39 On the basis of the principles above, the ECtHR concluded, in the Hirsi judgment, that Italian border guards held jurisdiction over migrants on board of a coastguard vessel.118 The judgment presents an authoritative basis that the European Convention applies extraterritorially and that migrants on the board of coastguard vessels benefit from the substantive guarantees of under Articles 3 and 13 ECHR (see Hailbronner/ Thym, Legal Framework for EU Asylum Policy, MN 57–60), which in practice will usually require states to allow migrants access to an individualised procedure to analyse whether return would violate Article 3 ECHR.119 It is open to debate if the ECtHR’s statement about migrants on board ships ‘registered in, or flying the flag of, that State’120 entails that other forms of de facto control cannot be qualified as an exercise of jurisdiction in the meaning of Article 1 ECHR, particularly in situations when border control officers are not in physical contact with migrant on coastguard ships.121 It remains the prerogative of the ECtHR to decide whether it follows the arguments put forward in favour of a broad reading of Article 1 ECHR, while considering that decisions may have implications for military action. The ECtHR has thus far been careful not to stretch jurisdiction too widely in this matter.122 40 In the light of the ECtHR case law, a similarly broad extraterritorial reach of the Geneva Convention beyond the obligation not to reject those seeking asylum at the 114 See Goodwin-Gill, ‘The Right to Seek Asylum: Interception at Sea and the Principle of NonRefoulement’, IJRL 23 (2011), p. 443–457. 115 On corresponding obligations of the Member States, see Scovazzi, ‘Human Rights and Immigration at Sea’, in: Rubio-Marı´n (ed), Human Rights, p. 212, 225–237; and Beushausen, ‘Vo¨lkerrechtliche Pflichten und Rechte von (EU-)Ku¨stenstaaten gegenu¨ber Migranten auf See’, Zeitschrift fu¨r Ausla¨nderrecht (2010), p. 45–49. 116 Reaffirmed by ECtHR, judgment of 23 February 2012 (GC), No. 27765/09, Hirsi Jamaa et al. v. Italy, para 72 summarising earlier judgments. 117 See, again, the summary of earlier case law by ECtHR, ibid., paras 73–75. 118 See the application of the principles described above by ECtHR, ibid., paras 76–82. 119 For further comments, also on the ECtHR’s traditional recourse to the prohibition of collective expulsions in Article 4 Additional Protocol No. 4 to the ECHR, see den Heijer, ‘Reflections on Refoulement and Collective Expulsion in the Hirsi Case’, IJRL 25 (2013), 265, 280–285; and Lehnert/Markard, ‘Mittelmeerroulette’, Zeitschrift fu¨r Ausla¨nderrecht (2012), 194, 197–198. 120 ECtHR, ibid., para 75. 121 Many migration law experts favour a broad reading; cf. den Heijer, ibid., p. 273–274; Moreno-Lax, ‘Hirsi Jamaa and Others v Italy’, Human Rights Law Review 12 (2012), 574, 580–582; and Klug/Howe, ‘The Concept of State Jurisdiction and the Applicability of the Non-refoulement Principle to Extraterritorial Interception Measures’, in: Ryan/Mitsilegas, Extraterritorial Immigration, p. 69, 96–99. 122 See Dennis, ‘Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation’, American Journal of International Law 99 (2005), p. 119–141; and Miller, ‘Revisiting Extraterritorial Jurisdiction’, European Journal of International Law 20 (2009), p. 1223–1246.

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state border (see above MN 36) would have limited practical implications for EU immigration and asylum law, since Article 3 ECHR goes beyond the Geneva Convention both in terms of qualitative criteria for non-refoulement and regarding procedural guarantees (see Hailbronner/Thym, Legal Framework for EU Asylum Policy, MN 55– 60). In the academic literature, there is a growing support – in contrast to the prevailing state practice – for a dynamic reinterpretation of the Geneva Convention to apply extraterritorially in line with human rights law, while state practice is much more reticent.123 It is well established, though, that situations without effective state control over a person or territory cannot be qualified as an exercise of state jurisdiction involving human rights accountability under the European Convention or other instruments.124 This entails that visa requirements and sanctions for transport carriers, which are widespread and often criticised politically,125 cannot be held liable for violations of non-refoulement obligations (see Meloni, Regulation (EC) No 810/2009 Article 1 MN 11). Express provisions on non-refoulement obligations in EU legislation, in particular 41 in the Schengen Borders Code (see above MN 35) and the Sea Borders Regulation (EU) 656/2014, do not in themselves oblige border guards to grant access to EU territory, since they should be understood, in essence, as declaratory confirmations of pre-existing human rights together with corresponding monitoring responsibilities (see Ryan, Regulation (EU) 656/2014 Article 4 MN 3–5).126 In a similar vein, Article 18 of the Charter does not change the overall picture, since its possible interpretations do not go beyond the level of protection guaranteed by the Geneva Convention or Article 3 ECHR (see Hailbronner/Thym, Legal Framework for EU Asylum Policy, MN 63). With regard to the EU Charter, it remains unclear, moreover, whether it emulates the jurisdictional threshold of Article 1 ECHR in instances of extraterritorial state action.127 No matter how precisely one defines territorial scope of the EU Charter, it depends on the factual circumstances of the case at hand whether national border control activities can be qualified as an implementation of Union law that entails the applicability of the EU Charter (see Hailbronner/Thym, Constitutional Framework, MN 47–48). If the Charter does not apply, national courts can have recourse to the ECHR and national constitutional guarantees in order to scrutinize state action. 123 See the arguments put forward and the summary of the state practice by Goodwin-Gill/McAdam, Refugee, p. 244–256; Gammeltoft-Hansen, ‘Extraterritorial Migration Control and the Reach of Human Rights’, in: Chetail/Baulez (eds), Research Handbook on International Law and Migration (Elgar, 2014), p. 113, 116–126; and den Heijer, Extraterritorial Asylum, p. 120–132. 124 See McNamara, ‘Member State Responsibility for Migration Control within Third States – Externalisation Revisited’, EJML 15 (2013), 319, 331–333; for a proposal for progressive reinterpretation of the ECHR, see Spijkerboer, ‘Stretching the Limits’, in: Maes et al., External Dimensions, p. 387, 394–402. 125 Cf. Ryan, ‘Extraterritorial Immigration Control’, in: ibid./Mitsilegas, Extraterritorial Immigration, p. 3–38. 126 Moreno-Lax, ‘(Extraterritorial) Entry Controls and (Extraterritorial) Non-Refoulement in EU Law’, in: Maes et al., External Dimensions, p. 415, 437–440, 474–476 can be misunderstood as implying that a declaratory confirmation of human rights obligations implies a statutory right to access. 127 For a progressive interpretation, see Costello/Moreno-Lax, ‘The Extraterritorial Application of the EU Charter of Fundamental Rights’, in: Peers et al. (eds), The EU Charter of Fundamental Rights. A Commentary (C.H. Beck/Hart, 2014), p. 1657–1684; more restrictive is Herdegen, ‘Grundrechte der Europa¨ischen Union’, in: Isensee/Kirchhof (ed), Handbuch des Staatsrechts, Vol. X, 3rd edn (C.F. Mu¨ller, 2012), § 211 MN 44–45.

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II. Regulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) Official Journal L 105, 13/04/2006, p. 1–32, last amended by Official Journal L 295, 06/11/2013, p. 1–10 Selected Bibliography: Boeles/den Heijer/Lodder/Wouters, European Migration Law, Second Edition (Intersentia, 2014), p. 375–380; Brouwer, Digital borders and real rights: effective remedies for thirdcountry nationals in the Schengen information system, Immigration and Asylum Law and Policy in Europe Volume 15 (Brill Nijhoff, 2008); Cholewinski, ‘Borders and Discrimination in the European Union’, in: Anderson/Apap (eds), Police and Justice Co-operation and the New European Borders (Kluwer Law International, 2002), p. 81–102; Cholewinski, ‘No right of entry: The legal regime on crossing the EU external border’, in: Groenendijk/Guild/Minderhoud (eds), In Search of Europe’s Borders, Immigration and Asylum Law and Policy in Europe Vol. 5 (Kluwer Law International, 2003), p. 105–130; Cornelisse, ‘What’s wrong with Schengen? Border Disputes and the Nature of Integration in the Area without Internal Borders’, CML Rev 51 (2014) p. 741–770; Guild/Bigo, ‘The Transformation of European Border Controls’, in: Ryan/Mitsilegas (eds), Extraterritorial Migration Control: Legal Challenges, Migration and Asylum Law and Policy in Europe Vol. 21 (Brill Nijhoff, 2010), p. 252–273; Groenendijk, ‘Reinstatement of Controls at the Internal Borders of Europe: Why and Against Whom’, ELJ 10 (2004), p. 150–170; Karanja, Transparency and Proportionality in the SIS and Border Control Cooperation (Brill Nijhoff, 2008), p. 361–393; Mitsilegas, ‘Border Security in the European Union: Towards Centralised Controls and Maximum Surveillance’, in: Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice? EU Immigration and Asylum Law and Policy (Hart Publishing, 2007), p. 359–394; Pascouau, ‘The Schengen Governance Package, The subtle balance between Community method and intergovernmental approach’, European Policy Center Discussion Paper, 12 December 2013; Peers, ‘Key Legislative Developments on Migration in the European Union’, EJML (2006), p. 321–356; Peers, ‘Enhancing Cooperation on Border Controls in the European Union’, in: Cholewinksi/Perruchoud/MacDonald (eds), International Migration Law – Developing Paradigms and Key Challenges (T.C.M. Asser Press, 2007), p. 447–463; Peers, ‘The Future of the Schengen System’, Swedish Institute for European Policy Studies, Report No. 6/2013; Peers/ Guild/Tomkin, EU Immigration and Asylum Law, Text and Commentary, Volume 1: Visas and Border Controls, Immigration and Asylum Policy in Europe Vol. 27, Second Edition (Brill Nijhoff, 2012), p. 33– 96; Wolff/Zapata-Barrero, ‘Border Management: Impacting on the Construction of the EU as a Polity?’, in: Wolff/Goudappel/de Zwaan (eds), Freedom, Security and Justice after Lisbon and Stockholm (T.M.C. Asser Press, 2011), p. 117–134.

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Articles 62(1) and (2)(a) thereof, Having regard to the proposal from the Commission, Acting in accordance with the procedure laid down in Article 251 of the Treaty(1), Whereas: (1) The adoption of measures under Article 62(1) of the Treaty with a view to ensuring the absence of any controls on persons crossing internal borders forms part of the Union’s objective of establishing an area without internal borders in which the free movement of persons is ensured, as set out in Article 14 of the Treaty. (1) Opinion of the European Parliament of 23 June 2005 (not yet published in the Official Journal) and Council Decision of 21 February 2006.

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(2) In accordance with Article 61 of the Treaty, the creation of an area in which persons may move freely is to be flanked by other measures. The common policy on the crossing of external borders, as provided for by Article 62(2) of the Treaty, is such a measure. (3) The adoption of common measures on the crossing of internal borders by persons and border control at external borders should reflect the Schengen acquis incorporated in the European Union framework, and in particular the relevant provisions of the 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(2) and the Common Manual(3). (4) As regards border control at external borders, the establishment of a ‘common corpus’ of legislation, particularly via consolidation and development of the acquis, is one of the fundamental components of the common policy on the management of the external borders, as defined in the Commission Communication of 7 May 2002 ‘Towards integrated management of the external borders of the Member States of the European Union’. This objective was included in the ‘Plan for the management of the external borders of the Member States of the European Union’, approved by the Council on 13 June 2002 and endorsed by the Seville European Council on 21 and 22 June 2002 and by the Thessaloniki European Council on 19 and 20 June 2003. (5) The definition of common rules on the movement of persons across borders neither calls into question nor affects the rights of free movement enjoyed by Union citizens and members of their families and by third-country nationals and members of their families who, under agreements between the Community and its Member States, on the one hand, and those third countries, on the other hand, enjoy rights of free movement equivalent to those of Union citizens. (6) Border control is in the interest not only of the Member State at whose external borders it is carried out but of all Member States which have abolished internal border control. Border control should help to combat illegal immigration and trafficking in human beings and to prevent any threat to the Member States’ internal security, public policy, public health and international relations. (7) Border checks should be carried out in such a way as to fully respect human dignity. Border control should be carried out in a professional and respectful manner and be proportionate to the objectives pursued. (8) Border control comprises not only checks on persons at border crossing points and surveillance between these border crossing points, but also an analysis of the risks for internal security and analysis of the threats that may affect the security of external borders. It is therefore necessary to lay down the conditions, criteria and detailed rules governing checks at border crossing points and surveillance. (9) Provision should be made for relaxing checks at external borders in the event of exceptional and unforeseeable circumstances in order to avoid excessive waiting time at borders crossing-points. The systematic stamping of the documents of thirdcountry nationals remains an obligation in the event of border checks being relaxed. Stamping makes it possible to establish, with certainty, the date on which, and where, the border was crossed, without establishing in all cases that all required travel document control measures have been carried out. (2) OJ L 239, 22.9.2000, p. 19. Convention as last amended by Regulation (EC) No 1160/2005 of the European Parliament and of the Council (OJ L 191, 22.7.2005, p. 18). (3) OJ C 313, 16.12.2002, p. 97. Common Manual as last amended by Council Regulation (EC) No 2133/2004 (OJ L 369, 16.12.2004, p. 5).

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(10) In order to reduce the waiting times of persons enjoying the Community right of free movement, separate lanes, indicated by uniform signs in all Member States, should, where circumstances allow, be provided at border crossing points. Separate lanes should be provided in international airports. Where it is deemed appropriate and if local circumstances so allow, Member States should consider installing separate lanes at sea and land border crossing points. (11) Member States should ensure that control procedures at external borders do not constitute a major barrier to trade and social and cultural interchange. To that end, they should deploy appropriate numbers of staff and resources. (12) Member States should designate the national service or services responsible for border-control tasks in accordance with their national law. Where more than one service is responsible in the same Member State, there should be close and constant cooperation between them. (13) Operational cooperation and assistance between Member States in relation to border control should be managed and coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States established by Regulation (EC) No 2007/2004(4). (14) This Regulation is without prejudice to checks carried out under general police powers and security checks on persons identical to those carried out for domestic flights, to the possibilities for Member States to carry out exceptional checks on baggage in accordance with Council Regulation (EEC) No 3925/91 of 19 December 1991 concerning the elimination of controls and formalities applicable to the cabin and hold baggage of persons taking an intra-Community flight and the baggage of persons making an intra-Community sea crossing(5), and to national law on carrying travel or identity documents or to the requirement that persons notify the authorities of their presence on the territory of the Member State in question. (15) Member States should also have the possibility of temporarily reintroducing border control at internal borders in the event of a serious threat to their public policy or internal security. The conditions and procedures for doing so should be laid down, so as to ensure that any such measure is exceptional and that the principle of proportionality is respected. The scope and duration of any temporary reintroduction of border control at internal borders should be restricted to the bare minimum needed to respond to that threat. (16) In an area where persons may move freely, the reintroduction of border control at internal borders should remain an exception. Border control should not be carried out or formalities imposed solely because such a border is crossed. (17) Provision should be made for a procedure enabling the Commission to adapt certain detailed practical rules governing border control. In such cases, the measures needed to implement this Regulation should be taken pursuant to Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(6). (18) Provision should also be made for a procedure enabling the Member States to notify the Commission of changes to other detailed practical rules governing border control. (4) 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 L 349, 25.11.2004, p. 1). (5) OJ L 374, 31.12.1991, p. 4. Regulation as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council (OJ L 284, 31.10.2003, p. 1). (6) OJ L 184, 17.7.1999, p. 23.

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(19) Since the objective of this Regulation, namely the establishment of rules applicable to the movement of persons across borders cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective. (20) This Regulation respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. It should be applied in accordance with the Member States’ obligations as regards international protection and non-refoulement. (21) By way of derogation from Article 299 of the Treaty, the only territories of France and the Netherlands to which this Regulation applies are those in Europe. It does not affect the specific arrangements applied in Ceuta and Melilla, as defined in the Agreement on the Accession of the Kingdom of Spain to the Convention implementing the Schengen Agreement of 14 June 1985(7). (22) In accordance with Articles 1 and 2 of the Protocol on the Position of Denmark annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application. Given that this Regulation builds upon the Schengen acquis under the provisions of Title IV of Part Three of the Treaty establishing the European Community, Denmark should, in accordance with Article 5 of the said Protocol, decide within a period of six months after the date of adoption of this Regulation whether it will implement it in its national law or not. (23) As regards Iceland and Norway, this Regulation constitutes a development of provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis(8) which fall within the area referred to in Article 1, point A, of Council Decision 1999/437/EC(9) on certain arrangements for the application of that Agreement. (24) An arrangement has to be made to allow representatives of Iceland and Norway to be associated with the work of committees assisting the Commission in the exercise of its implementing powers. Such an arrangement has been contemplated in the Exchanges of Letters between the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning committees which assist the European Commission in the exercise of its executive powers(10), annexed to the abovementioned Agreement. (25) As regards Switzerland, this Regulation constitutes a development of provisions of the Schengen acquis within the meaning of the Agreement signed between the European Union, the European Community and the Swiss Confederation concerning the association of the Swiss Confederation with the implementation, application and development of the Schengen acquis, which fall within the area referred to in

(7)

OJ L 239, 22.9.2000, p. 69. OJ L 176, 10.7.1999, p. 36. (9) OJ L 176, 10.7.1999, p. 31. (10) OJ L 176, 10.7.1999, p. 53. (8)

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Article 1, point A, of Decision 1999/437/EC read in conjunction with Article 4(1) of Council Decisions 2004/849/EC(11) and 2004/860/EC(12). (26) An arrangement has to be made to allow representatives of Switzerland to be associated with the work of committees assisting the Commission in the exercise of its implementing powers. Such an arrangement has been contemplated in the Exchange of Letters between the Community and Switzerland, annexed to the abovementioned Agreement. (27) This Regulation constitutes a development of provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis(13). The United Kingdom is therefore not taking part in its adoption and is not bound by it or subject to its application. (28) This Regulation constitutes a development of provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis(14). Ireland is therefore not taking part in its adoption and is not bound by it or subject to its application. (29) In this Regulation, the first sentence of Article 1, Article 5(4)(a), Title III and the provisions of Title II and the annexes thereto referring to the Schengen Information System (SIS) constitute provisions building on the Schengen acquis or otherwise related to it within the meaning of Article 3(2) of the 2003 Act of Accession, HAVE ADOPTED THIS REGULATION:

TITLE I GENERAL PROVISIONS Article 1 Subject matter and principles This Regulation provides for the absence of border control of persons crossing the internal borders between the Member States of the European Union. It establishes rules governing border control of persons crossing the external borders of the Member States of the European Union. Content I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Introduction and purpose of the Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 1

(11) Council Decision 2004/849/EC of 25 October 2004 on the signing, on behalf of the European Union, and on the provisional application of certain provisions of the Agreement between the European Union, the European Community and the Swiss Confederation concerning the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis (OJ L 368, 15.12.2004, p. 26). (12) Council Decision 2004/860/EC of 25 October 2004 on the signing, on behalf of the European Community, and on the provisional application of certain provisions of the Agreement between the European Union, the European Community and the Swiss Confederation, concerning the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis (OJ L 370, 17.12.2004, p. 78). (13) OJ L 131, 1.6.2000, p. 43. (14) OJ L 64, 7.3.2002, p. 20.

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2. Territorial scope of the Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 3. Refugees, asylum-seekers and other persons in need of international protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 4. Judicial protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 II. Drafting history of Regulation 562/2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

I. General remarks 1. Introduction and purpose of the Regulation Regulation 562/20061 (Schengen Borders Code, SBC) provides for the absence of 1 border controls at ‘internal borders’2 and establishes common rules and standards to be applied by the Member States when controlling persons crossing the external borders of the Schengen area (Article 1). The aim of external border control is to help combat illegal immigration and trafficking in human beings and to protect the security of the Schengen area.3 Border checks conducted by one Member State at its external borders are executed on behalf of all the other Member (resp. Schengen) States as well since controls at internal borders have to be abolished. They may only be reintroduced exceptionally and temporarily in the event of a serious threat to the public policy or internal security of one or several Member States. In that sense, the provisions on external and internal border controls are interdependent. Regulation 562/2008 entered into force on 13 October 20064 and is a development of 2 the Schengen acquis. It was adopted on the basis of Article 77(2)(b) and (e) TFEU (formerly Article 62(1) and (2)(a) EC Treaty) and combines in a single instrument the existing rules of the acquis on border control which were previously found in the Schengen Implementing Convention (SIC), the Common Manual and a number of decisions of the Schengen Executive Committee. It clarified which of these rules were to be considered legally binding by integrating them into a regulation, and also clarified and further developed selected substantive aspects of the relevant rules on border control (see below MN 24). Regulation 562/2006 is part of the European Union’s policy of external border 3 control and management. Other important instruments in that field include: – The provisions of the SIC on border controls that have not been repealed by Regulation 562/2006 (cf. below MN 20–25); – the Practical Handbook for Border Guards (Schengen Handbook);5 – the regulations and the decision with respect to the establishment and functioning of the European Border Agency ‘FRONTEX’;6 1 Regulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ 2006 L 105/1, last amended by OJ 2013 L 295/1. 2 See the legal definition in Article 2(1) Regulation 562/2006. 3 See recital 6 of Regulation 562/2006. 4 Article 34 Regulation 562/2006 which concerns the Member States duties to notify certain facts to the Commission already entered into force on 14 April 2006. 5 Commission Recommendation, COM(2006) 5186 final; amended by Commission Recommendation COM(2008) 2976 final, Commission Recommendation, COM(2009) 7376 final, Commission Recommendation, COM(2010) 5559 final, Commission Recommendatio, COM(2011) 3918 final, and Commission Recommendation, COM(2012) 9330 final. 6 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; later amended by Regulation (EC) No. 863/2007 of 11 July 2007 establishing a mechanism for the creation of Rapid Border Intervention Terms, OJ 2007 L 199/30, Regulation (EU) No. 1168/2011 of 25 October 2011, OJ 2011 L 304/1, Regulation (EU) No. 1052/2013 of 22 October 2013

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– The responsibility for the implementation of the rules laid down in Regulation 562/ 2006 lies with the Member States. Nevertheless and in order to coordinate and strengthen cooperation between the Member States, in particular with regard to Title II of Regulation 562/2006,7 a European agency for the management of operational cooperation at the external borders, FRONTEX, was established in 2004.8 FRONTEX has its seat in Warsaw, Poland,9 and became fully operational on 3 October 2005.10 – the rules on local border traffic;11 and – the regime on carrier sanctions.12 4 The control of external borders and especially the combating of illegal immigration is furthermore also one of the most important goals of the European Union’s visa policy.13 These two areas of law, their secondary instruments and in particular the corresponding databases are closely interwoven and should not be considered separately: The Schengen Information System, and in particular Article 96 SIC alerts for the purposes of refusing entry to the Schengen area, is a vital instrument being used during the examination of visa applications. 5 The Visa Information System (hereinafter: VIS)14 which became operational in October 2011 goes beyond the SIS and also stores biometric data and data relating to visa applications that cannot be entered into the SIS for lack of a legal basis. According to Article 2 VIS Regulation, the VIS shall not only facilitate the visa application procedure as such but also facilitate checks at external border crossing points and the fight against fraud. The authorities at the external borders have access to the VIS for the checks that are to be conducted according to Article 5 in conjunction with Article 7 Regulation 562/2006 (Article 18 VIS Regulation).15 6 Harmonized rules and procedural guarantees also apply to third-country nationals who are found to be unlawfully staying in the Schengen area – because they do not or no longer fulfil the criteria for entry into the Schengen area as set out in Article 5 Reg. establishing the European Border Surveillance System (Eurosur), OJ 2013 L 295/11 and Regulation (EU) No. 656/2014 of 15 May 2014 (Sea Borders Regulation). Council Decision 2005/358/EC of 26 April 2005 designating the seat of the European Agency for the Management of Operational Cooperation at the External Border of the Member States of the European Union, OJ L 114/13 (2005). 7 See Article 16 Regulation 562/2006. 8 See Regulation (EC) No. 2007/2004. 9 See Council Decision 2005/358/EC. 10 See in more detail Peers/Guild/Tomkin, EU Immigraiton and Asylum Law, Vol. 1, p. 119–203; Peers, Justice and Home Affairs Law, 216 et seqq. as well as the commentaries by Ryan on the Frontex Regulation (EC) 2007/2004 and on the Sea Borders Regulation 656/2014, in this volume. 11 Regulation (EC) No. 1931/2006/EC of the European Parliament and of the Council of 20 December 2006 laying down rules on local border traffic at the external land borders of the Member States and amending the provisions of the Schengen Convention, OJ 2006 L 405/1; corrigenda in OJ 2007 L 29/3. For a commentary on this regulation see for example Peers/Guild/Tomkin, p. 205–222 (206–214). 12 Council Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data, OJ 2004 L 61/24. On carrier sanction see for example Moreno Lax, ‘Carrier Sanctions’, in: ‘Peers et al. (eds), EU Immigration and Asylum Law (Text and Commentary): Second Revised Edition, Vol. 2: EU Immigration Law, Immigration and Asylum Policy in Europe Vol. 27 (Brill Nijhoff, 2012), p. 363–384; Karanja, Transparency and Proportionality in the SIS and Border Control Cooperation, p. 369 et seqq.; Rodenha¨user, IJRL 26 (2014), p. 223–247. 13 See above Thym, Legal Framework for Entry and Border Controls, MN 9–15. On the interaction of these areas see also Cholewinski, in Groenendijk/Guild/Minderhoud (eds), p. 105, 127 et seq. 14 Council Decision of 8 June 2004 establishing the Visa Information System (VIS), OJ 2004 L 213/5; 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. 15 See also Regulation (EC) No. 81/2009 of the European Parliament and of the Council of 14 January 2009 amending Regulation (EC) No. 562/2006 as regards the use of the Visa Information System (VIS) under the Schengen Borders Code, OJ 2009 L 35/56.

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562/2006 and do not have any other right for entry, stay or residence in any Schengen state: The Return Directive 2008/115/EC16 obliges the Schengen States to issue a return decision against such individuals. If they do not depart voluntarily, they may be removed. An entry ban for the Schengen area has to be issued, and Member States may decide to register these bans in the SIS.

2. Territorial scope of the Regulation The Schengen Borders Code is fully applicable to all the ‘old’ Member States with the exception of the non-European territories of France and the Netherlands.17 The United Kingdom and Ireland have not opted in to this regulation and it therefore does not apply to these two states. Denmark does in general not participate in the adoption of measures based on Part III Title V TFEU (Article 1, 2 of Protocol No. 22 on the Position of Denmark). According to Article 4 of the protocol, Denmark can, however, decide within a period of six months to implement such measures in national law, which it has done with respect to Regulation 562/2006. Such a decision results in an obligation under international law between Denmark and the other Member States bound by the Schengen acquis (Article 4(1) second sentence Protocol on the Position of Denmark). Despite the fact that Reg. 562/2006 is therefore not directly applicable, and the general rules on judicial protection do also not apply, it is nevertheless expected that the rulings of the European Court of Justice on the interpretation of this regulation will be taken into account by Denmark.18 The ‘new’ Member States have been bound by the entire Schengen acquis and its further developments from the date of their accession to the Union. In order to become ‘full’ Schengen states applying all the Schengen rules (including the ones on the abolition of internal border controls), the Council had resp. has to take a unanimous decision in this regard (Article 2(2) Schengen Protocol).19 Romania, Bulgaria, Cyprus and Croatia are not yet full Schengen States, and even though they already apply the rules on external borders control, controls at internal borders are still being maintained.20 Regulation 562/2006 is applicable to the Spanish exclaves of Ceuta and Melilla only as far as the declaration of Spain in the Final Act to the Agreement on the Accession of the Kingdom of Spain to the Schengen Implementation Convention21 does not provide otherwise (Article 36 Regulation 562/2006).22 According to that declaration,23 the con16 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-country nationals; for an analysis see Lutz/Mananashvili, Return Directive 2008/115/EC, in this volume. 17 Recital 21 of Regulation 562/2006. 18 On the position of Denmark see also above Hailbronner/Thym, Constitutional Framework, MN 40–41. 19 See already the common declaration to Article 139 of the Schengen Implementation Convention. The Council takes such a decision after having evaluated if the requirements for the correct application of the Schengen acquis are met in the Member State in question. Of particular importance are in this regard the correct implementation of external borders control as well as of the accompanying measures, for example in the area of data protection. See on this particularity of the Schengen acquis for example Peers, Justice and Home Affairs Law, p. 88–90. 20 The list of ‘full’ Schengen States is found in the Schengen Handbook (FN 5), Part One, 1, but a consolidated version of the Practical Handbook is not always available for download. See concerning the state of play in the accession to Schengen the Commission’s website at: http://ec.europa.eu/dgs/homeaffairs/what-we-do/policies/borders-and-visas/schengen/index_en.htm [last accessed 20 January 2015]. 21 OJ 2000 L 239/69. 22 See also recital 21, and already Article 138 of the Schengen Implementation Convention. 23 OJ 2000 L 239/73.

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trols between Ceuta and Melilla and the customs area of the European Union are to be maintained, thereby weakening the rules set out in Article 20, 21 Regulation 562/2006 concerning the admissibility of controls at internal borders and within a Member State. As far as this declaration does not provide special rules, Regulation 562/2006 is also applicable to these territories. 11 By reason of their association agreements to the Schengen acquis the non-EUMember States Iceland and Norway24 as well as Switzerland25 and the Principality of Liechtenstein26 are bound by and fully applying the Schengen Borders Code Regulation.

3. Refugees, asylum-seekers and other persons in need of international protection The consequences of strict external border controls can be particularly harsh on persons seeking international protection: Persons fleeing from persecution, from a serious threat to their life or physical and mental integrity or from an armed conflict will typically not fulfil the conditions for entry into the Schengen area27 as they will in a lot of cases not even be in the possession of valid travel documents and even more rarely be able to provide all the required supporting documents. 13 If third-country nationals reach an external border of a Member State, they must be granted the possibility to seek international protection in the European Union and their application must be examined to ensure that they are in no case returned to a country where they are at risk of being persecuted or where their life or freedom is at risk (prohibition of refoulement which is considered a rule of ius cogens).28 Regulation 562/2006 takes these protection obligations into account in several provisions:29 – Recital (20) and Article 3(b) clearly state that the provisions of Regulation 562/2006 should be applied in accordance with protection obligations under international law and without prejudice to the rights of persons seeking international protection. – The imposition of penalties for unauthorised crossing of the external borders in Article 4(3) is without prejudice to Article 31 of the 1951 Geneva Refugee Convention which prohibits such criminal penalties for refugees on the sole account of their illegal entry or presence on the territory of a Schengen state provided that they present themselves without delay to the authorities and show good cause for their illegal entry or presence. – Article 5(4)(c) provides for possible derogations from the entry conditions of Article 5(1) among other reasons on grounds of international obligations or for humanitarian reasons. 12

24 Agreement with Iceland and Norway of 17 May 1999 concerning the latters’ association with the implementation, application and development of the Schengen acquis, OJ 1999 L 176/35. 25 Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, OJ 2008 L 53/52. 26 Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, OJ 2011 L 160/39. 27 See below the comments on Article 5 Regulation 562/2006. 28 See in more detail and with further references Epiney/Waldmann/Egbuna-Joss/Oeschger, ‘Maximen und Verfahren im regula¨ren und beschleunigten Asylverfahren’, in: UNHCR/SFH (eds), Schweizer Asylrecht, EU-Standards und internationales Flu¨chtlingsrecht – Eine Vergleichsstudie (Sta¨mpfli, 2009), p. 199–300, 203 et seqq. 29 See also point 10 of Part Two, Section 1 of the Schengen Handbook.

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– Article 6(1) stresses the importance of border guards respecting human dignity in the performance of their duties, in particular when vulnerable persons – e. g. traumatised persons, unaccompanied minors or victims of human trafficking – are involved. – Article 13(1) establishes that the application of special provisions concerning the right to asylum and international protection remain unaffected by the principle that entry should be refused if the entry conditions of Article 5 are not fulfilled. Whereas the Common Manual did not contain much information on the treatment 14 of asylum seekers at the external borders,30 Point 10 of Part Two, Section 1 of the Schengen Handbook states very clearly that all applications for international protection at the border must be assessed, and that any behaviour or expression of fear of the person of suffering serious harm if returned to his or her country of origin must be considered as an application for international protection. The applications must be examined either in special border procedures or regular 15 asylum procedures within the territory. The question is raised if a general right of entry has to be granted to persons seeking international protection, even in case the conditions of Article 5 Regulation 562/2006 are not fulfilled, if the entry is the only way for persons seeking international protection or asylum to ask for that protection according to the relevant European Union rules, especially the Asylum Qualification Directive 2011/95/EU and the Asylum Procedures Directive 2013/32/EU31. As far as the Asylum Qualification Directive 2011/95 is concerned, it only provides for the conditions under which asylum or international protection has to be granted; it does not contain any provision on the question of entry into European Union’s territory. The Asylum Procedures Directive 2013/32 clearly states that its provisions apply to ‘all applications for asylum made in the territory, including at the border or in the transit zones of the Member States’ (Article 3(1) Asylum Procedures Directive 2013/32, emphasis added). According to Article 43 Asylum Procedures Directive 2013/32, Member States are authorized to adopt special provisions applicable to border procedures in accordance with the principles and guarantees set out in Chapter II of Asylum Procedures Directive 2013/32 (Article 43(1)). According to Article 43(2), Member States must ensure that a decision on the application is being taken within four weeks, or otherwise the person must be granted a right of entry into the territory and the application must then be examined in observation of all the procedural standards set out in the Asylum Procedures Directive 2013/32. Article 43(3) provides for an exception to the latter rule in case of a large influx of people. The Member States may then still apply the border procedures, as long as the persons seeking international protection are accommodated in the proximity to the border or transit zone. If persons seeking international protection are intercepted at sea outside of EU 16 territory and therefore not able to reach the external border as defined in Art. 2(2) Regulation 562/2006, Member States might still be bound by international human rights law to grant them at least a provisional right of entry for the purpose of assessing their claim that their return would violate Art. 3 ECHR. The ECtHR has made it clear that persons are to be regarded as being within the ‘jurisdiction’ of a State within the meaning of Art. 1 ECHR and thereby benefitting from the substantive guarantees of the Convention, if that State exercises ‘continuous and exclusive de jure and de facto control’32 over them, irrespective of the fact that this control might be exercised on a 30

See Peers, in Cholewinksi/Perruchoud/MacDonald (eds), Internatinal Migration Law, p. 450 et seqq. Directive 2013/32/EU of 26 June 2013 on common procedures for granting and withdrawing international protection, OJ 2013 L 180/60. 32 ECtHR, Judgment of 23 February 2012, No. 27765/09, Hirsi Jamaa and Others v. Italy [GC], para 81; ECtHR, Judgment of 29 March 2010, No. 3394/03, Medvedyev and Others v. France [GC], para 67. 31

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vessel outside their territory (see Thym, Legal Framework for Entry and Border Controls, MN 38–41)33. 17 The jurisprudence of the ECJ on this issue remains somewhat unclear. In ANAFE34, the Court had to answer the question whether persons who had been issued temporary residence cards while the decision on their application for asylum was pending in one Member State, were allowed to re-enter the Schengen area after they had left the territory of the Member State examining their request. The ECJ held that such persons cannot cross the external borders on the strength of their temporary residence documents alone. The border authorities must refuse them entry (Article 13 Reg. 562/ 2006) unless they are covered by an exception laid down in Article 5(4) Reg. 562/2006. Article 5(4)(c) expressively authorises Member States to grant entry on humanitarian grounds, grounds of national interest or because of international obligations even to a person who does not fulfil all the entry conditions in Article 5. Even though the Court also stressed that the SBC is without prejudice to the rights of refugees and persons requesting international protection, in particular as regards non-refoulement (Article 3(b) Reg. 562/2006), it did not give a clear answer on the issue whether Member States are allowed to refuse asylum seekers entry at their borders or must grant them a right of entry35. 18 The conclusion must be drawn that neither the provisions of the Schengen Borders Code nor of the Asylum Procedures Directive 2013/32 can be interpreted in the sense of a ‘right of entry’ in order to request international protection. The non-refoulement principle nevertheless demands that national authorities at the external borders – or, under the conditions discussed above, even outside EU territory – must ensure that all applications for international protection are examined, either by sending the person to the Member State responsible for the application according to the criteria set out in the Dublin III Regulation (EU) No 604/201336 or by examining the application themselves during special border procedures or regular procedures within the territory after having granted a right of entry for that purpose. Once the person entered into the territory of a Member State – notwithstanding the exception in Article 43(3) Asylum Procedures Directive –, Article 9(1) Asylum Procedures Directive 2013/32 applies and grants the person a right to remain during the examination of his or her application.

4. Judicial protection Before the Treaty of Lisbon entered into force on 1 December 2009, judicial protection used to be restricted for the areas of law covered by Title IV EC Treaty which of course also included the rules of Regulation 562/2006. According to Article 68(1) EC Treaty, only the highest national courts were bound to request a preliminary ruling of the European Court of Justice if questions on the interpretation or on the validity of European Union acts were raised. Consequently, lower national courts did not have the right or the possibility to request an interpretation of the applicable EU law. 20 Fortunately, the Treaty of Lisbon improved the judicial protection in this area. The Treaty on the Functioning of the European Union (TFEU) does not contain any provision 19

33 On the (possibly) extraterritorial scope of the Schengen Borders Code see in detail den Heijer, Europe and Extraterritorial Asylum (Hart, 2012), p. 165, 193–199. 34 ECJ, ANAFE, C-606/10, EU:C:2012:348, paras 39–41. 35 See Cornelisse, CML Rev 51(2014), p. 766. 36 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.

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similar to Article 68 EC Treaty and the general rules on the jurisdiction of the ECJ therefore now also apply to Part III Title V TFEU (‘Area of Freedom, Security and Justice’). The exceptions mentioned in Article 276 TFEU do not include the area of border controls.

II. Drafting history of Regulation 562/2006 The abolition of checks at internal borders and the transfer of those checks to the external borders was the main subject and purpose of the Schengen Convention of 1985 (Article 17) and the Schengen Implementation Convention of 1990 (hereinafter: SIC; Title II, Article 2–8). Article 2(1) SIC provided for the abolition of controls at internal borders, whereas Article 2(2) left the possibility of Member States to reinstate border controls for public policy or national security reasons unaffected. The rules on the crossing of the external borders were found in Articles 3–8 SIC. Article 5 SIC being a key provision listed the conditions on which third country nationals could be granted entry into the territories of the participating States. According to Article 6(1) SIC the checks at external borders were to be carried out by the competent national authorities in accordance with their national laws and taking into account certain uniform principles listed in Article 6(2). Article 7 SIC established an obligation of cooperation between the participating States, and Article 8 SIC conferred the power to adopt decisions on the practical aspects of carrying out the border checks unto the Schengen Executive Committee. Making use of these powers, the Executive Committee adopted the Common Manual37 detailing in its Part I the conditions for entering the Schengen area and giving practical guidance for the implementation of Article 3–5 SIC, and in Part II the carrying out of border checks at the external borders and therewith supplementing Article 6–7 SIC.38 In 1999, the Treaty of Amsterdam and the so-called Schengen Protocol attached to it integrated the Schengen acquis on border control into the legal framework of the Community. The Council designated Article 62(1) and (2) EC Treaty as the new legal basis for Article 2–7 SIC, the Decision of the Executive Committee establishing the Common Manual and five more decisions of the Committee.39 The Common Manual was a result of the Schengen intergovernmental cooperation and after the entry into force of the Treaty of Amsterdam, the powers to amend the Manual and its 21 annexes were conferred upon the Council.40 The European Parliament had largely been and continued to be excluded from effective participation in the legislative process in the area of border control. Even after the Common Manual had become part of EU law, it still differed from other EU law in that it did not take the form of any of the instruments provided for by 37 Decision of the Executive Committee of 28 April 1999 on the definitive versions of the Common Manual and the Common Consular Instructions (SCH/COM-ex [99] 13), OJ 2000 L 239/317. The Common Manual was first published in OJ 2002 C 313/97. It was considered a confidential document until the Council took the necessary decisions to declassify it; Council Decision 2000/751/EC, OJ 2000 L 303/29, and Council Decision 2002/535/EC, OJ 2002 L 123/49. 38 See Peers, EJML 2006, p. 324 et seqq. 39 See Peers, EJML 2006, p. 324. 40 Council Regulation 790/2001/EC of 24 April 2001 reserving to the Council implementing powers with regard to certain detailed provisions and practical procedures for carrying out border checks and surveillance, OJ 2001 L 116/5. An action for annulment by the Commission was unsuccessful, ECJ, C257/01, EU:C:2005:25.

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Article 288 TFEU (formerly Article 249 EC Treaty), which lead to some ambiguity about its legal effect. The legal uncertainty was further increased by the fact that the Manual was a sort of hybrid between a source of EU law and a practical handbook that sometimes borrowed from or simply reproduced the contents of other sources as for example the Common Consular Instructions.41 25 Discussions about the need to revise the Common Manual started not long after the entry into force of the Treaty of Amsterdam, and it became clear that the Member States favoured the Commission’s proposal to separate the legal instrument from the practical handbook.42 The Commission drafted and released a proposal for a regulation in May 2004.43 With effect from 1 January 2005, the decision-making rules for measures adopted on the basis of Article 62(1) and (2)(a) EC Treaty were amended44 and provided for the application of the co-decision procedure pursuant to Article 251 EC Treaty and qualified majority voting. The Council and the European Parliament reached a final agreement in the first reading in June 2005,45 and the Schengen Borders Code Regulation 562/2006 was formally adopted on 15 March 2006. 26 Regulation 562/2006 entered into force on 13 October 2006 with the exception of Article 34. Article 34 establishes obligations of the Member States to notify certain facts to the Commission and entered into force already on 14 April 2006 (Article 40). With its entry into force, the following provisions and measures were repealed (Art. 39): – art 2–8 SIC; – the Common Manual and its annexes; – the relevant decisions of the Schengen Executive Committee; – Annex 7 of the Common Consular Instructions which was also part of the Common Manual; – the Council Regulation conferring the implementing powers in the area of border control on the Council; – Council Decision 2004/581/EC on signs at external borders; – a Council Decision amending the Common Manual; and – Council Regulation 2133/2004 on the systematic stamping of travel documents of third country nationals. 27 Regulation 562/2006 has since been amended by six regulations: – Regulation 296/200846 amending the existing rules on the implementing powers of the Commission; – Regulation 81/2009 regarding the use of the VIS under the Schengen Code47; – the Visa Code Regulation (EC) No 810/200948; – Regulation 265/2010 concerning the movement of persons with a long-stay visa49;

41

See Commission Proposal, COM(2004) 391 final, p. 6. See COM(2004) 391 final, p. 6 et seqq.; see also Peers, EJML 2006, p. 326 et seqq. 43 COM(2004) 391 final. 44 Council Decision 2004/927/EC of 22 December 2004 providing for certain areas covered by Title IV of Part Three of the Treaty establishing the European Community to be governed by the procedure laid down in Article 251 of that Treaty, OJ 2004 L 396/45, Article 1(1). 45 See Peers, EJML 2006, p. 329 for possible reasons for the first-reading agreement. 46 Regulation (EC) No. 296/2008 of the European Parliament and of the Council of 11 March 2008 amending Regulation (EC) No. 562/2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), as regards the implementing powers conferred on the Commission, OJ 2008 L 97/60. 47 OJ 2009 L 35/56. 48 OJ 2009 L 243/1. 49 OJ 2010 L 85/1. 42

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– Regulation 610/201350 which introduced a number of amendments and clarifications which had become necessary through several years of practical experience, the adoption of the Visa Code Regulation and the ECJ’s jurisprudence; this regulation also brought Reg. 562/2006 in alignment with Article 290 TFEU and delegated the power to adopt additional measures concerning border surveillance and the amendments of the annexes to the Commission; and – Regulation 1015/201351 providing for more detailed rules on the temporary reintroduction of border control at internal borders in exceptional circumstances as well as a new evaluation mechanism. As mentioned above, one of the goals when drafting what later became Regulation 28 562/2006 was to separate the provisions of the Common Manual that were legally binding from the ones that were not. The practical guidance for border guards when implementing the provision of Regulation 562/2006 was then compiled in the so-called ‘Schengen Handbook’52 with a view to ensuring an effective and harmonized implementation of the common rules on border control. The provisions of the Schengen Handbook are recommendations and not legally binding.

Article 2 Definitions For the purposes of this Regulation the following definitions shall apply: 1. ‘internal borders’ means: (a) the common land borders, including river and lake borders, of the Member States; (b) the airports of the Member States for internal flights; (c) sea, river and lake ports of the Member States for regular internal ferry connections; 2. ‘external borders’ means the Member States’ land borders, including river and lake borders, sea borders and their airports, river ports, sea ports and lake ports, provided that they are not internal borders; 3. ‘internal flight’ means any flight exclusively to or from the territories of the Member States and not landing in the territory of a third country; 4. ‘regular internal ferry connection’ means any ferry connection between the same two or more ports situated on the territory of the Member States, not calling at any ports situated outside the territory of the Member States and consisting of the transport of passengers and vehicles according to a published timetable; 5. ‘persons enjoying the right of free movement under Union law’ means: (a) Union citizens within the meaning of Article 20(1) of the Treaty, and thirdcountry nationals who are members of the family of a Union citizen exercising his or her right to free movement to whom 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(15) applies; (b) third-country nationals and their family members, whatever their nationality, who, under agreements between the Union and its Member States, on the one 50

OJ 2013 L 182/1. OJ 2013 L 295/1. 52 See above MN 5. (15) OJ L 158, 30.4.2004, p. 77. 51

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hand, and those third countries, on the other hand, enjoy rights of free movement equivalent to those of Union citizens; 6. ‘third-country national’ means any person who is not a Union citizen within the meaning of Article 20(1) of the Treaty and who is not covered by point 5 of this Article; 7. ‘persons for whom an alert has been issued for the purposes of refusing entry’ means any third-country national for whom an alert has been issued in the Schengen Information System (SIS) in accordance with and for the purposes laid down in Article 96 of the Schengen Convention; 8. ‘border crossing point’ means any crossing-point authorised by the competent authorities for the crossing of external borders; 8a. ‘shared border crossing point’ means any border crossing point situated either on the territory of a Member State or on the territory of a third country, at which Member State border guards and third-country border guards carry out exit and entry checks one after another in accordance with their national law and pursuant to a bilateral agreement; 9. ‘border control’ means the activity carried out at a border, in accordance with and for the purposes of this Regulation, in response exclusively to an intention to cross or the act of crossing that border, regardless of any other consideration, consisting of border checks and border surveillance; 10. ‘border checks’ means the checks carried out at border crossing points, to ensure that persons, including their means of transport and the objects in their possession, may be authorised to enter the territory of the Member States or authorised to leave it; 11. ‘border surveillance’ means the surveillance of borders between border crossing points and the surveillance of border crossing points outside the fixed opening hours, in order to prevent persons from circumventing border checks; 12. ‘second line check’ means a further check which may be carried out in a special location away from the location at which all persons are checked (first line); 13. ‘border guard’ means any public official assigned, in accordance with national law, to a border crossing point or along the border or the immediate vicinity of that border who carries out, in accordance with this Regulation and national law, border control tasks; 14. ‘carrier’ means any natural or legal person whose profession it is to provide transport of persons; 15. ‘residence permit’ means: (a) all residence permits issued by the Member States according to the uniform format laid down by Council Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uniform format for residence permits for third-country nationals(16) and residence cards issued in accordance with Directive 2004/38/EC; (b) all other documents issued by a Member State to third-country nationals authorising a stay on its territory, that have been the subject of a notification and subsequent publication in accordance with Article 34, with the exception of: (i) temporary permits issued pending examination of a first application for a residence permit as referred to in point (a) or an application for asylum and (ii) visas issued by the Member States in the uniform format laid down by Council Regulation (EC) No 1683/95 of 29 May 1995 laying down a uniform format for visas(17); (16) (17)

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OJ L 157, 15.6.2002, p. 1. OJ L 164, 14.7.1995, p. 1.

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16. ‘cruise ship’ means a ship which follows a given itinerary in accordance with a predetermined programme, which includes a programme of tourist activities in the various ports, and which normally neither takes passengers on nor allows passengers to disembark during the voyage; 17. ‘pleasure boating’ means the use of pleasure boats for sporting or tourism purposes; 18. ‘coastal fisheries’ means fishing carried out with the aid of vessels which return every day or within 36 hours to a port situated in the territory of a Member State without calling at a port situated in a third country; 18a. ‘offshore worker’ means a person working on an offshore installation located in the territorial waters or in an area of exclusive maritime economic exploitation of the Member States as defined by international maritime law, and who returns regularly by sea or air to the territory of the Member States; 19. ‘threat to public health’ means any disease with epidemic potential as defined by the International Health Regulations of the World Health Organisation and other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the Member States. Content I. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Internal borders (Article 2(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Persons enjoying the right of free movement and third-country nationals (Article 2(5) and (6)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 4

I. General remarks The definitions in Article 2 are of great significance for the correct interpretation of 1 the other provisions of the Regulation. Whereas most of the definitions in Article 2 are self-explanatory, some are worth discussing and will be analysed in greater detail below.

II. Internal borders (Article 2(1)) Article 2(1) defines ‘internal borders’ as the common borders between Member 2 States, thereby in principle also including the borders between the Schengen States and Great Britain and Ireland that are not bound by this regulation.53 As a logical consequence of not being bound by this piece of legislation, Article 20 Regulation 562/ 2006 (which provides for the absence of controls at internal borders) does as a matter of course also not apply to these states. In addition, Protocol (No. 20) on the application of certain aspects of Article 26 TFEU to the United Kingdom and to Ireland (1997)54 entitles the United Kingdom and Ireland to maintain controls at their borders to other Member States. Said protocol thereby modifies the legal scope of Article 26 TFEU55 with respect to the United Kingdom and Ireland. Furthermore, the Schengen acquis has been extended to some Non-member States 3 (Norway, Iceland, Switzerland and Liechtenstein), so that border controls are also 53

See above Article 1 MN 7. OJ 2006 C 321 E/196. 55 According to the jurisprudence of the ECJ, Article 26 TFEU is, however, not directly applicable as far as the elimination of border controls is concerned. The latter could only be achieved through the adoption of corresponding harmonisation measures, see ECJ, Wijsenbeek, C-378/97, EU:C:1999:439. See on the significance of this ruling in the present context Peers, Justice and Home Affairs, p. 156, 158. 54

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abolished at the borders to these countries. Therefore, the notion of ‘internal borders’ should be understood as to also include borders between the participating EU-Member States and the Non-EU Member States Norway, Iceland, Switzerland and Liechtenstein that are applying the Schengen acquis on the basis of association agreements.

III. Persons enjoying the right of free movement and third-country nationals (Article 2(5) and (6)) Article 2(5),(6) define the notions of ‘persons enjoying the right of free movement under Union law’ and ‘third-country national’. It is remarkable that the latter notion is defined more narrowly than the notion of ‘alien’ in Article 1 SIC, excluding all EU citizen and their family members (whatever their nationality) enjoying the right of free movement as well as any other person and their family members enjoying an equivalent right of free movement based on bilateral agreements as for example the EEC Agreement or the Agreement on the free movement of persons concluded with Switzerland.56 5 The question under what conditions it can be presumed that a bilateral agreement grants rights that are equivalent to the free movement rights of EU citizen and their family members can be difficult to answer. A decisive factor should be whether the agreement grants rights that are similarly defined to the same categories of persons as the EU, including to persons not exercising any economic activity in particular. 6 The question if a person is to be considered a third-country national is of some importance since Regulation 562/2006 provides in different articles for less favourable rules as far as third-country nationals are concerned, in comparison with persons enjoying the right of free movement laid down in EU law (for example in Article 5 in relation to the entry). 7 The larger definition of ‘aliens’ according to Article 1 SIC remains pertinent for the provisions of the SIC that are not repealed by Reg. 562/2006.57 According to Article 134 SIC, the SIC is, however, only applicable as far as it is in conformity with EU law, so that the exercise of the right of free movement pursuant to EU law may in no way be impeded by the provisions of the SIC that have not been repealed. 4

Article 3 Scope This Regulation shall apply to any person crossing the internal or external borders of Member States, without prejudice to: (a) the rights of persons enjoying the right of free movement under Union law; (b) the rights of refugees and persons requesting international protection, in particular as regards non-refoulement. Content I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. The rights of persons enjoying the right of free movement (Article 3(a)) III. The rights of refugees and persons requesting international protection (Article 3(b)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 5

56 Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, OJ 2002 L 114/6. 57 As for example Article 22 SIC concerning the obligation of aliens to register with the authorities. According to Article 39(1), Regulation No. 562/2006 does only repeal Articles 2–8 SIC.

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I. General remarks Article 3 leaves explicitly the rights of persons enjoying the right of free movement 1 and of persons seeking international protection unaffected.

II. The rights of persons enjoying the right of free movement (Article 3(a)) Article 3(a) states in no uncertain terms that the application of this regulation must 2 not impede the exercise of the right of free movement, which is of particular importance to third-country nationals wanting to cross the external borders of the Union: If they are entitled to free movement as a family member of a Union citizen, they must be granted entry even if they do not meet all the requirements of Article 5. The European Court of Justice ruled in MRAX58 in favour of a right of entry for a 3 third-country national married to a Union citizen solely on the ground of the existing family relationship which could be proved. According to the Court, the right of entry is to be granted even if the person concerned is not in possession of a visa, a passport or a valid travel document, but can prove his identity and the existence of his marriage in another manner, provided that he does not constitute a threat to public order and security. Further, such a third-country national is not to be expelled from the territory solely on the grounds of his illegal entry. In case C-503/0359, the Court declared that a third-county national married to a Union citizen was not to be denied entry solely on the ground that there was an alert for refusal of his entry in the SIS according to Article 96 SIC. In such a case, the ‘automatic’ refusal of entry according to Article 5 and 15 SIC in cases of an existing alert would not be in compliance with the requirements of EU law which took precedence over the SIC according to Article 134 SIC. EU law would require the authorities to examine in each individual case if the individual behaviour of the person concerned constituted a risk to public order and security. Considering the clear wording of Article 3(a), it is to be assumed that the conclusions 4 drawn from this jurisprudence are also applicable and pertinent on the basis of the Schengen Borders Code Regulation 562/2006, which is of particular importance against the background that the requirements for an alert for the refusal of entry of a third-country national in general are much lower than for a refusal of entry of thirdcountry family member of a Union citizen exercising his or her right of free movement.60 In this context, it should further be recalled that pursuant to the findings of the ECJ in the Metock case61 the right of stay of third-country nationals that are family members of a Union citizen is not (or no longer)62 dependent on a previous legal sojourn in the EU territory.63

58

ECJ, MRAX, C-459/99, EU:C:2002:461. ECJ, Commission v. Spain, C-503/03, EU:C:2006:74. See also Eicke, ‘Paradise Lost? Exclusion and Expulsion from the EU’, in Groenendijk/Guild/ Minderhoud (eds), p. 160 et seqq. 61 ECJ, Metock, C-127/08, EU:C:2008:449. 62 See the previous different findings in the Court’s judgment in the Akrich case, ECJ, Akrich, C-109/ 01, EU:C:2003:491. 63 See the detailed analysis of the Metock judgment and its embedding in the previous jurisprudence of the Court in Epiney, ‘Von Akrich u¨ber Jia bis Metock: zur Anwendbarkeit der gemeinschaftlichen Regeln u¨ber den Familiennachzug – Gleichzeitig eine Anmerkung zu EuGH, Rs. C-127/08 (Metock), Urt. v. 25.7.2008’, Zeitschrift Europarecht 2008, p. 840–858. 59 60

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III. The rights of refugees and persons requesting international protection (Article 3(b)) 5

According to Article 3(b) the rights of refugees and persons requesting international protection remain unaffected by this regulation. Under certain conditions, such persons must be granted a right of entry in order for their applications to be examined.64

Article 3a Fundamental Rights When applying this Regulation, Member States shall act in full compliance with relevant Union law, including the Charter of Fundamental Rights of the European Union (‘the Charter of Fundamental Rights’); relevant international law, including the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 (‘the Geneva Convention’); obligations related to access to international protection, in particular the principle of non-refoulement; and fundamental rights. In accordance with the general principles of Union law, decisions under this Regulation shall be taken on an individual basis. Art. 3a contains an express safeguard clause for the protection of fundamental rights and was introduced into the Schengen Borders Code in 2013. It calls upon the Members States to fully respect their obligations flowing from the EU Charter of Fundament Rights, the Geneva Refugee Convention and other relevant international law – in particular the international human rights treaties and the ECHR –, and stresses the importance of the principle of non-refoulement65. 2 With the entry into force of the Lisbon Treaty on 1 December 2009, the EU Charter of Fundamental Rights became legally binding. Of particular relevance in the framework of border control are Article 1 (Human Dignity)66, Article 4 (Prohibition of Torture), Article 18 (Right to Asylum), Article 19 (Prohibition of Refoulement) as well as the guarantee to an effective remedy in Article 47. 3 The ECJ considers provisions of Reg. 562/2006 that might significantly interfere with the fundamental rights of the persons concerned as ‘essential elements’ and requires the involvement of the Union legislature in their amendment67. 1

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See the detailed comments on Article 1 MN 12–17. On the protection of the rights of persons seeking international protections see above Article 1, MN 12–18. 66 See ECJ, Zakira, C-23/12, EU:C:2013:24. 67 ECJ, European Parliament v. Council, C-355/10, EU:C:2012:516, paras 76–77. 65

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TITLE II EXTERNAL BORDERS CHAPTER I Crossing of external borders and conditions for entry Article 4 Crossing of external borders 1. External borders may be crossed only at border crossing points and during the fixed opening hours. The opening hours shall be clearly indicated at border crossing points which are not open 24 hours a day. Member States shall notify the list of their border crossing points to the Commission in accordance with Article 34. 2. By way of derogation from paragraph 1, exceptions to the obligation to cross external borders only at border crossing points and during fixed opening hours may be allowed: (a) for individuals or groups of persons, where there is a requirement of a special nature for the occasional crossing of external borders outside border crossing points or outside fixed opening hours, provided that they are in possession of the permits required by national law and that there is no conflict with the interests of public policy and the internal security of the Member States. Member States may make specific arrangements in bilateral agreements. General exceptions provided for by national law and bilateral agreements shall be notified to the Commission pursuant to Article 34; (b) for individuals or groups of persons in the event of an unforeseen emergency situation; (c) in accordance with the specific rules set out in Articles 18 and 19 in conjunction with Annexes VI and VII. 3. Without prejudice to the exceptions provided for in paragraph 2 or to their international protection obligations, Member States shall introduce penalties, in accordance with their national law, for the unauthorised crossing of external borders at places other than border crossing points or at times other than the fixed opening hours. These penalties shall be effective, proportionate and dissuasive. Content I. General principles on the crossing of external borders (Article 4(1)) . . . . II. Possible derogations (Article 4(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Penalties for the illegal crossing of external borders (Article 4(3)). . . . . . . .

1 3 5

I. General principles on the crossing of external borders (Article 4(1)) Title II (Article 4–19a) regulates the controls at external borders. 1 Article 4 establishes that external borders may only be crossed at the designated 2 border crossing points and during the fixed opening hours (Article 4(1)). This article replaces Article 3 SIC and points 1.2 and 1.3 of part I of the Common Manual. According to Article 34(1)(b) Regulation 562/2006, Member States have to notify their border crossing points to the Commission, the updates are then published in the Epiney/Egbuna-Joss

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Official Journal.68 The competent national authorities have to carry out border surveillance pursuant to Article 12 in order to prevent unauthorised border crossings.

II. Possible derogations (Article 4(2)) Article 4(2) provides for derogations from Article 4(1) in the event of an unforeseen emergency situation (lit. b) and for certain categories of borders and persons (e. g. Heads of State, pilots, seamen, offshore workers) that are subject to the specific rules set out in Annexes VI and VII (lit. c). Derogations to para. 1 are also permitted where there is a ‘requirement of a special nature’ for the occasional crossing of external borders outside border crossing points or outside fixed opening hours (lit. a). Although this exception has been amended by Reg. 610/2013 in an attempt to clarify it, its exact meaning still remains rather obscure. It seems to be sufficient that there is a ‘requirement of a special nature’ without providing further guidance on what kind of requirements are to be considered to be of such nature. No extraordinary situation of any kind is required, leaving a large margin of discretion to the Member States that is only limited in that the persons must hold the required permits and that the public order and internal security of the other Member States may not be threatened (which are once again indeterminate legal concepts that need to be further clarified). One could think of touristic activities as a possible example for the application of Article 4(2)(c). In situations that fall under Article 4(2)(a),(b), Member States are also allowed to provide for derogations from the rules set out in Article 7 (border checks on persons) (Article 7(8) Reg. 562/2006). 4 It should further be noted in this context that this provision (and as a matter of fact all provisions of Regulation 562/2006) is without prejudice to the rights of holder of local border traffic cards under Regulation 1931/2006 on local border traffic at the external borders69 and/or under bilateral agreements.70 According to Article 15(1) Regulation 1931/2006 the bilateral agreements concluded for the implementation of the local border traffic regime may provide for an easing of the border crossing in derogation of Article 4(1) Regulation 562/2006. 3

III. Penalties for the illegal crossing of external borders (Article 4(3)) 5

Article 4(3) takes over Article 3(2) SIC and concerns the introduction of penalties for violations of Article 4(1). Article 4(3) is without prejudice to Article 31 of the Geneva Convention on the status of refugees of 21 June 1951 which prohibits the imposing of criminal sanctions solely on account of the illegal entry or presence of a refugee in the sense of Article 1 of the Convention, as long as the persons comes directly from a country where he was at a risk of being persecuted and presents himself without delay to the authorities and gives good reasons for his illegal entry or presence.71 68 The notifications can also be accessed on the website of the Directorate-General for Migration and Home Affairs http://ec.europa.eu/dgs/home-affairs/e-library/documents/categories/notifications/index_en.htm [last accessed: 24 February 2015]. 69 Regulation (EC) No. 1931/2006 of 20 December 2006 laying down rules on local border traffic at the external borders of the Member States and amending the provisions of the Schengen Convention; OJ 2006 L 405/1; Corrigendum, OJ 2007 L 29/3. 70 Article 35 Regulation 562/2006, at 3.4 of Part Two, Section 1 of the Schengen Handbook. 71 For a detailed commentary on Article 31 Geneva Refugee Convention see for example Hathaway, The Rights of Refugees under International Law (CUP, 2005), p. 370–439. See also the comments on refugees, asylum seekers and persons in need of international protection above Article 1 MN 12–18.

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Art. 5

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Article 5 Entry conditions for third-country nationals 1. For intended stays on the territory of the Member States of a duration of no more than 90 days in any 180-day period, which entails considering the 180-day period preceding each day of stay, the entry conditions for third-country nationals shall be the following: (a) they are in possession of a valid travel document entitling the holder to cross the border satisfying the following criteria: (i) its validity shall extend at least three months after the intended date of departure from the territory of the Member States. In a justified case of emergency, this obligation may be waived; (ii) it shall have been issued within the previous 10 years; (b) they are in possession of a valid visa, if required pursuant to 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(18), except where they hold a valid residence permit or a valid long-stay visa; (c) they justify the purpose and conditions of the intended stay, and they have sufficient means of subsistence, both for the duration of the intended stay and for the return to their country of origin or transit to a third country into which they are certain to be admitted, or are in a position to acquire such means lawfully; (d) they are not persons for whom an alert has been issued in the SIS for the purposes of refusing entry; (e) they are not considered to be a threat to public policy, internal security, public health or the international relations of any of the Member States, in particular where no alert has been issued in Member States’ national data bases for the purposes of refusing entry on the same grounds. 1a. For the purposes of implementing paragraph 1, the date of entry shall be considered as the first day of stay on the territory of the Member States and the date of exit shall be considered as the last day of stay on the territory of the Member States. Periods of stay authorised under a residence permit or a long-stay visa shall not be taken into account in the calculation of the duration of stay on the territory of the Member States. 2. A non-exhaustive list of supporting documents which the border guard may request from the third-country national in order to verify the fulfilment of the conditions set out in paragraph 1, point c, is included in Annex I. 3. Means of subsistence shall be assessed in accordance with the duration and the purpose of the stay and by reference to average prices in the Member State(s) concerned for board and lodging in budget accommodation, multiplied by the number of days stayed. Reference amounts set by the Member States shall be notified to the Commission in accordance with Article 34. The assessment of sufficient means of subsistence may be based on the cash, travellers’ cheques and credit cards in the third-country national’s possession. Declarations of sponsorship, where such declarations are provided for by national law and letters of guarantee from hosts, as defined by national law, where the third(18)

OJ L 81, 21.3.2001, p. 1.

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country national is staying with a host, may also constitute evidence of sufficient means of subsistence. 4. By way of derogation from paragraph 1: (a) third-country nationals who do not fulfil all the conditions laid down in paragraph 1 but who hold a residence permit or a long-stay visa shall be authorised to enter the territory of the other Member States for transit purposes so that they may reach the territory of the Member State which issued the residence permit or the long-stay visa, unless their names are on the national list of alerts of the Member State whose external borders they are seeking to cross and the alert is accompanied by instructions to refuse entry or transit; (b) third-country nationals who fulfil the conditions laid down in paragraph 1, except for that laid down in point (b), and who present themselves at the border may be authorised to enter the territory of the Member States, if a visa is issued at the border in accordance with Articles 35 and 36 of 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)(19). Member States shall compile statistics on visas issued at the border in accordance with Article 46 of Regulation (EC) No 810/2009 and Annex XII thereto. If it is not possible to affix a visa in the document, it shall, exceptionally, be affixed on a separate sheet inserted in the document. In such a case, the uniform format for forms for affixing the visa, laid down by Council Regulation (EC) No 333/2002 of 18 February 2002 on a uniform format for forms for affixing the visa issued by Member States to persons holding travel documents not recognised by the Member State drawing up the form(20), shall be used; (c) third-country nationals who do not fulfil one or more of the conditions laid down in paragraph 1 may be authorised by a Member State to enter its territory on humanitarian grounds, on grounds of national interest or because of international obligations. Where the third-country national concerned is the subject of an alert as referred to in paragraph 1(d), the Member State authorising him or her to enter its territory shall inform the other Member States accordingly. Content I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Individual right of entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Conditions of entry into the Schengen area (Article 5(1)). . . . . . . . . . . . . . . . . 1. Possession of valid travel documents (Article 5(1)(a)) . . . . . . . . . . . . . . . . . . 2. Possession of a valid visa if required pursuant to Regulation 539/2001 (Article 5(1)(b)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Justified purpose of stay and sufficient means of subsistence (Article 5(1)(c)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. No Article 96 SIC alert in the SIS for the purpose of refusing entry (Article 5(1)(d)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. No threat to public policy, internal security, public health or international relations (Article 5(1)(e)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Derogations from the conditions of entry (Article 5(4)) . . . . . . . . . . . . . . . . . . . 1. Right of transit when in possession of a residence permit or a longstay visa (Article 5(4)(a)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Issue of visa at the border (Article 5(4)(b)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Entry on humanitarian grounds, grounds of national interest or because of international obligations (Article 5(4)(c)) . . . . . . . . . . . . . . . . . . . . (19) (20)

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OJ L 243, 15.9.2009, p. 1. OJ L 53, 23.2.2002, p. 4.

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Art. 5

Part B II

I. General remarks Article 5 lists the conditions of entry for third-country nationals and certain 1 derogations thereof. This article is one of the key provisions of Regulation 562/2006 and sets out the conditions of entry into the Schengen area for stays not exceeding three months per six-month period. Further guidance for the application of Article 5 found in point 1.1 of Part Two, Section 1 of the Schengen Handbook. Article 5 replaces Article 5 SIC and points 2 to 4 of Part 1 of the Common Manual.

II. Individual right of entry Whereas Article 5 SIC stipulated that aliens ‘may be granted entry’ if the conditions mentioned were fulfilled, Article 5 Regulation 562/2006 is worded differently and states that ‘the entry conditions for third-country nationals shall be the following’. The change of wording in Article 5 was made at the behest of the European Parliament and the question has to be raised if Article 5 Regulation 562/2006 stipulates an individual right of entry into the Schengen area also for third-country nationals within the meaning of Article 2(6) Regulation 562/2006 if these persons fulfil all the conditions listed.72 In this respect, Article 5 needs to be considered in conjunction with Article 13 Regulation 562/2006 according to which entry shall be refused if a third-country national does not fulfil the conditions of Article 5. In deciding if the conditions are actually fulfilled, the national authorities will have a certain margin of discretion. Nevertheless is it clear that their discretion is not unlimited: Article 13(2) Regulation 562/2006 states that a refusal of entry needs to be substantiated and authorities are bound to use the standard form in Annex V containing an exhaustive list of reasons for refusal that is corresponding to the entry conditions set out in Article 5(1). Persons refused entry shall have the right to appeal (Article 13(3) Regulation 562/2006). The explicit possibility to appeal the refusal decision speaks clearly in favour of the conclusion that Article 5 does grant individual rights and if the conditions of this provision are fulfilled, third-country nationals have an individual right of entry. In addition, the European Court of Justice has ruled that EU law provisions are granting individual rights if the provisions in question also aim at the protection of the interest of the individual, irrespective of whether the actual wording of the provision states (only) a corresponding obligation of the Member States. It is obvious that the entry into the Schengen area is of (sometimes great) importance for the individual, and therefore Article 5(1) should be interpreted as granting an individual right of entry if the conditions mentioned in this provisions are fulfilled. It should, however, not be forgotten that no ‘right’ to be issued a visa can be deduced from Visa Code Regulation (EC) No 810/2009 so that in conclusion, the decision to let a person enter the Schengen area remains – at least with respect to persons who need a visa – at the discretion of the Member States73. Furthermore, the indeterminate legal notions used in Article 5 further give the national authorities a certain margin of appreciation, even if – as argued – a right to entry has to be admitted. 72

Peers, EJML 2006, p. 332. Although the Visa Code Regulation also limits the possible grounds for refusal of a visa, the ECJ stressed that the competent authorities of a Member States still have ‘a wide discretion in the examination of that application so far as concerns the conditions for the application of those provisions and the assessment of the relevant facts, with a view to ascertaining whether one of those grounds for refusal can be applied to the applicant’ [emphasis added], ECJ, Koushkaki, C-84/12, EU:C:2013:862, para 63; see Meloni, Visa Code Regulation (EC) No 810/2009, Art. 20–21, MN 1. 73

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III. Conditions of entry into the Schengen area (Article 5(1)) 6

Article 5(1) lists five conditions of entry into the Schengen area for stays of up to three months in a six month period74.

1. Possession of valid travel documents (Article 5(1)(a)) 7

What documents are accepted as valid travel documents by the individual Member States can be found in Decisions (98) 56 and (99) 14 of the Schengen Executive Committee.75 Generally speaking most of the Member States accept ordinary passports, diplomatic passports, service passports and travel documents for refugees as valid travel documents in the sense of Article 5(1)(a). According to Article 7(3)(a)(i),(ii) Regulation 562/2006 border guards shall examine whether this condition is fulfilled by verifying that the travel document is not expired and does not bear signs of falsification or counterfeiting. The validity of the documents must in general extend at least three months after the planned date of departure from the Schengen area and the documents must not be older than ten years (Article 5(1)(a)(i), (ii).

2. Possession of a valid visa if required pursuant to Regulation 539/2001 (Article 5(1)(b)) The identity of the person and the authenticity of the visa must in general be verified by consulting the VIS unless one of the grounds of derogation from this rule apply (Article 7 (3)(aa), (ab) Regulation 562/2006). 9 If the third-country national does not need a visa pursuant to Regulation 539/2001, border guards have to examine the entry and exit stamps in his or her travel document in order to verify that he or she has not already exceeded the maximum duration of stay of three months per six-month period (Article 7(3)(iii) Regulation 562/2006). 10 Article 5(1)(b) provides for an exception from the visa requirement according to the EU visa list if the third-country national is in possession of a valid residence permit of a Schengen state or valid long-stay visa. A valid residence permit76 can either be a permit issued on the basis of EU law (as for example the Family Reunification Directive 2003/ 86,77 or the Long Term Residents’ Directive 2003/109)78 or any other document issued by a Member State pursuant to national law authorizing a stay in its territory with the exception of temporary permits that were issued pending the examination of an application for asylum or residence79. A list of the national residence permits has to be notified to the Commission pursuant to Article 34(1)80. 8

74 How to calculate the maximum possible stay in a six-month period was clarified in ECJ, Bot, C-241/ 05, EU:C:2006:634 and introduced in the Schengen Borders Code by Reg. 610/2013, OJ 2013 L 182/1. 75 The lists have since been updated in accordance with Regulation (EC) No. 789/2001. 76 See the definition in Article 2(15) that refers to Regulation 1030/2002 laying down a uniform format for residence permits for third-country nationals, OJ L 157/1 (2002). 77 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ L251/12 (2003). 78 Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, OJ L 16/44 (2004). 79 See Article 2(15)(b)(i) and also ECJ, ANAFE, C-606/10, EU:C:2012:348, para 39–41. 80 The notifications can be accessed on the website of the Directorate-General for Migration and Home Affairs at http://ec.europa.eu/dgs/home-affairs/e-library/documents/categories/notifications/index_en.htm [last accessed: 24 February 2015].

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Schengen Borders Code Regulation (EC) No 562/2006

Art. 5

Part B II

3. Justified purpose of stay and sufficient means of subsistence (Article 5(1)(c)) Article 5(1)(c) is to be read in conjunction with Article 5(2),(3) in conjunction with Annex I and Article 7(3)(iv),(v) Regulation 562/2006. Whether the conditions of Article 5(1)(c) are fulfilled or not is to be verified by requesting supporting documents, a non-exhaustive list of which is found in Annex I. What constitute sufficient means of subsistence is to be assessed in reference to the purpose and the duration of stay (Article 5(3) subpara. 1). The Member States have to notify their reference amounts to the Commission (Article 5(3) subpara. 2, Article 34(1)81: Some Member States have set the reference amount in relation to their national subsistence minimum, others have set out a specific amount or formula while yet others have only notified their guidelines for assessment. A majority of states considers around 50–70 E per day to be sufficient, some states request, however, proof of higher financial resources. Certain states have also notified special rules for students or visitors staying with friends or family. The third-country nationals need to proof by means of cash, travellers’ cheques and credit cards in their possession that they have the required amounts at their disposal. If provided for in national law, sponsorship declarations and letters of guarantee are also accepted (Article 5(3) subpara. 3 Regulation 562/2006). By and large, it is to be welcomed that the criteria for the assessment of sufficient means have been stated more precisely than in Article 5 SIC and that the discretion of the authorities in assessing the means has been further limited. The specifications in Article 5(3) Regulation 562/2006 do nevertheless also not guarantee a uniform application of this criterion since the required amounts may vary considerably between the Member States as shown above. It is surprising that pursuant to Article 5(1)(c) Regulation 562/2006 third-country nationals still have to justify the purpose and circumstances of their stay: If a stay is in principle permissible independent of its purpose – as seems to be suggested by Article 5(1) Regulation 562/2006 – and if there is an actual right of entry if the requirements of Article 5(1) are met, it is questionable why the purpose of the stay must still be justified in detail. Depending on the circumstances, such an obligation to state the purpose of stay may violate the private sphere of the individual, and the statement of the purpose of stay may furthermore also affect the decisions of the competent authorities (when making use of their discretion). It is further unclear when a purpose of stay can be considered as having been ‘justified’: It will be difficult to provide actual proof for several purposes of stay. Finally, it should be pointed out that the interests of the Member States are sufficiently protected by ensuring that the third-country national is not a threat to public policy, internal security, public health or the international relations of any of the Member States. Against this background, the justification of the purpose of stay in Article 5(1)(c) – whereas the standard of ‘proof’ should be quite low in order not to impede the right of entry – should be interpreted as to only be required in order to ensure that the person concerned is not a risk to any of the public interests mentioned in Article 5(1)(e).

81 For an updated list of the reference amounts notified visit the website of the Directorate-General for Migration and Home Affairs at http://ec.europa.eu/dgs/home-affairs/e-library/documents/categories/notifications/index_en.htm [last accessed: 24 February 2015].

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4. No Article 96 SIC alert in the SIS for the purpose of refusing entry (Article 5(1)(d)) 18

It should be recalled82 that a third-country national who is married to a Union citizen may not be refused entry solely because of an Article 96 SIC alert.83 In such situations, the rules on the right of free movement laid down in EU law apply and take precedence so that the authorities must examine in each individual case if the person concerned constitutes a risk for public order and security.

5. No threat to public policy, internal security, public health or international relations (Article 5(1)(e)) Not constituting a threat to public policy, internal security, public health or international relations of any of the Schengen states is the last condition mentioned in Article 5(1). 20 The condition that the person may not constitute a threat to public health is new compared to Article 5 SIC.84 The notion is defined in Article 2(19) Regulation 562/2006 and means any disease with epidemic potential and other infectious or contagious diseases if there are certain protection provisions applying to nationals of the Member State concerned. 21 Entry is to be refused if the third-country national is considered a threat to any of the listed public interests of any Member State. The third-country national therefore has (theoretically) to meet the respective requirements of all Member States, which can constitute a significant obstacle. Even though these are EU law notions, Member States have a certain margin of appreciation and as a result, the concepts of these public interests in the Member States may differ. 19

IV. Derogations from the conditions of entry (Article 5(4)) Article 5(4) provides for three possible derogations from Article 5(1).

22

1. Right of transit when in possession of a residence permit or a long-stay visa (Article 5(4)(a)) If a third-country national is in possession of a residence permit or a long-stay visa, he has the right of transit through the other Schengen states in order to reach the state that issued his permit, even if he does not fulfil all the conditions of Article 5(1). 24 Article 5(4)(a) is also to be interpreted as granting individual rights to the persons concerned. According to this provision, entry into the Schengen area can only be refused if there is an alert with the instruction to refuse entry or transit in the national database of the Schengen states whose external borders he wants to cross. As a result, third-country nationals who hold a residence permit need generally not prove that they have sufficient means of subsistence, neither need they provide supporting documents identifying their purpose of stay. 23

2. Issue of visa at the border (Article 5(4)(b)) 25

To a third-country national who fulfils all the conditions in Article 5(1) with the exception of the necessary visa, a visa can be issued at the border pursuant to the Visa Code Regulation 810/2009. 82

See the comments made above on Article 3 MN 3. ECJ, Commission v. Spain, C-503/03, EU:C:2006:74. 84 See Peers, EJML 2006, p. 332. 83

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Schengen Borders Code Regulation (EC) No 562/2006

Art. 6–12

Part B II

3. Entry on humanitarian grounds, grounds of national interest or because of international obligations (Article 5(4)(c)) Third-country nationals who do not fulfil the conditions of Article 5(1) may be 26 granted entry on humanitarian grounds, on grounds of national interest or because of international obligations. The latter reason is of particular importance for persons seeking international protection and in the context of the non-refoulement principle. If a SIS alert exists for that person, the Member state authorising entry has to inform the other Member States. Article 5(4)(c) is worded in a non-binding way (‘… may be granted …’) leaving the 27 decision to grant entry in such cases to the discretion of the Member State concerned. It should be remembered, however, that the obligations flowing from the prohibition of refoulement are of mandatory nature and under certain conditions prohibit the rejection of a person at the border85.

CHAPTER II Control of external borders and refusal of entry Article 6 Conduct of border checks 1. Border guards shall, in the performance of their duties, fully respect human dignity, in particular in cases involving vulnerable persons. Any measures taken in the performance of their duties shall be proportionate to the objectives pursued by such measures. 2. While carrying out border checks, border guards shall not discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

Article 7 Border checks on persons 1. Cross-border movement at external borders shall be subject to checks by border guards. Checks shall be carried out in accordance with this chapter. The checks may also cover the means of transport and objects in the possession of the persons crossing the border. The law of the Member State concerned shall apply to any searches which are carried out. 2. All persons shall undergo a minimum check in order to establish their identities on the basis of the production or presentation of their travel documents. Such a minimum check shall consist of a rapid and straightforward verification, where appropriate by using technical devices and by consulting, in the relevant databases, information exclusively on stolen, misappropriated, lost and invalidated documents, of the validity of the document authorising the legitimate holder to cross the border and of the presence of signs of falsification or counterfeiting. The minimum check referred to in the first subparagraph shall be the rule for persons enjoying the right of free movement under Union law. 85 On the question of a right of entry for asylum seekers see ECJ, ANAFE, C-606/10, EU:C:2012:348, paras 39–41; and the detailed comments on refugees, asylum seekers and persons in need of international protection above Article 1 MN 12–18.

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However, on a non-systematic basis, when carrying out minimum checks on persons enjoying the right of free movement under Union law, border guards may consult national and European databases in order to ensure that such persons do not represent a genuine, present and sufficiently serious threat to the internal security, public policy, international relations of the Member States or a threat to the public health. The consequences of such consultations shall not jeopardise the right of entry of persons enjoying the right of free movement under Union law into the territory of the Member State concerned as laid down in Directive 2004/38/EC. 3. On entry and exit, third-country nationals shall be subject to thorough checks. (a) thorough checks on entry shall comprise verification of the conditions governing entry laid down in Article 5(1) and, where applicable, of documents authorising residence and the pursuit of a professional activity. This shall include a detailed examination covering the following aspects: (i) verification that the third-country national is in possession of a document which is valid for crossing the border and which has not expired, and that the document is accompanied, where applicable, by the requisite visa or residence permit; (ii) thorough scrutiny of the travel document for signs of falsification or counterfeiting; (iii) examination of the entry and exit stamps on the travel document of the third-country national concerned, in order to verify, by comparing the dates of entry and exit, that the person has not already exceeded the maximum duration of authorised stay in the territory of the Member States; (iv) verification regarding the point of departure and the destination of the third-country national concerned and the purpose of the intended stay, checking if necessary, the corresponding supporting documents; (v) verification that the third-country national concerned has sufficient means of subsistence for the duration and purpose of the intended stay, for his or her return to the country of origin or transit to a third country into which he or she is certain to be admitted, or that he or she is in a position to acquire such means lawfully; (vi) verification that the third-country national concerned, his or her means of transport and the objects he or she is transporting are not likely to jeopardise the public policy, internal security, public health or international relations of any of the Member States. Such verification shall include direct consultation of the data and alerts on persons and, where necessary, objects included in the SIS and in national data files and the action to be performed, if any, as a result of an alert; (aa) if the third country national holds a visa referred to in Article 5(1)(b), the thorough checks on entry shall also comprise verification of the identity of the holder of the visa and of the authenticity of the visa, by consulting the Visa Information System (VIS) in accordance with Article 18 of 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)(21); (ab) by way of derogation, where: (i) traffic of such intensity arises that the waiting time at the border crossing point becomes excessive; (21)

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Art. 6–12

Part B II

(ii) all resources have already been exhausted as regards staff, facilities and organisation; and (iii) on the basis of an assessment there is no risk related to internal security and illegal immigration; the VIS may be consulted using the number of the visa sticker in all cases and, on a random basis, the number of the visa sticker in combination with the verification of fingerprints. However, in all cases where there is doubt as to the identity of the holder of the visa and/or the authenticity of the visa, the VIS shall be consulted systematically using the number of the visa sticker in combination with the verification of fingerprints. This derogation may be applied only at the border crossing point concerned for as long as the above conditions are met; (ac) the decision to consult the VIS in accordance with point (ab) shall be taken by the border guard in command at the border crossing point or at a higher level. The Member State concerned shall immediately notify the other Member States and the Commission of any such decision; (ad) each Member State shall transmit once a year a report on the application of point (ab) to the European Parliament and the Commission, which shall include the number of third-country nationals who were checked in the VIS using the number of the visa sticker only and the length of the waiting time referred to in point (ab)(i); (ae) points (ab) and (ac) shall apply for a maximum period of three years, beginning three years after the VIS has started operations. The Commission shall, before the end of the second year of application of points (ab) and (ac), transmit to the European Parliament and to the Council an evaluation of their implementation. On the basis of that evaluation, the European Parliament or the Council may invite the Commission to propose appropriate amendments to this Regulation; (b) thorough checks on exit shall comprise: (i) verification that the third-country national is in possession of a document valid for crossing the border; (ii) verification of the travel document for signs of falsification or counterfeiting; (iii) whenever possible, verification that the third-country national is not considered to be a threat to public policy, internal security or the international relations of any of the Member States; (c) In addition to the checks referred to in point (b) thorough checks on exit may also comprise: (i) verification that the person is in possession of a valid visa, if required pursuant to Regulation (EC) No 539/2001, except where he or she holds a valid residence permit; such verification may comprise consultation of the VIS in accordance with Article 18 of Regulation (EC) No 767/2008; (ii) verification that the person did not exceed the maximum duration of authorised stay in the territory of the Member States; (iii) consultation of alerts on persons and objects included in the SIS and reports in national data files; (d) for the purpose of identification of any person who may not fulfil, or who may no longer fulfil, the conditions for entry, stay or residence on the territory of the Member States, the VIS may be consulted in accordance with Article 20 of Regulation (EC) No 767/2008.

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Entry and Border Controls

4. Where facilities exist and if requested by the third-country national, such thorough checks shall be carried out in a private area. 5. Without prejudice to the second subparagraph, third-country nationals subject to a thorough second line check shall be given written information in a language which they understand or may reasonably be presumed to understand, or in another effective way, on the purpose of, and the procedure for, such a check. This information shall be available in all the official languages of the Union and in the language(s) of the country or countries bordering the Member State concerned and shall indicate that the third-country national may request the name or service identification number of the border guards carrying out the thorough second line check, the name of the border crossing point and the date on which the border was crossed. 6. Checks on a person enjoying the right of free movement under Union law shall be carried out in accordance with Directive 2004/38/EC. 7. Detailed rules governing the information to be registered are laid down in Annex II. 8. Where points (a) or (b) of Article 4(2) apply, Member States may also provide derogations from the rules set out in this Article.

Article 8 Relaxation of border checks 1. Border checks at external borders may be relaxed as a result of exceptional and unforeseen circumstances. Such exceptional and unforeseen circumstances shall be deemed to be those where unforeseeable events lead to traffic of such intensity that the waiting time at the border crossing point becomes excessive, and all resources have been exhausted as regards staff, facilities and organisation. 2. Where border checks are relaxed in accordance with paragraph 1, border checks on entry movements shall in principle take priority over border checks on exit movements. The decision to relax checks shall be taken by the border guard in command at the border crossing point. Such relaxation of checks shall be temporary, adapted to the circumstances justifying it and introduced gradually. 3. Even in the event that checks are relaxed, the border guard shall stamp the travel documents of third-country nationals both on entry and exit, in accordance with Article 10. 4. Each Member State shall transmit once a year a report on the application of this Article to the European Parliament and the Commission.

Article 9 Separate lanes and information on signs 1. Member States shall provide separate lanes, in particular at air border crossing points in order to carry out checks on persons, in accordance with Article 7. Such lanes shall be differentiated by means of the signs bearing the indications set out in the Annex III. Member States may provide separate lanes at their sea and land border crossing points and at borders between Member States not applying Article 20 at their

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Schengen Borders Code Regulation (EC) No 562/2006

Art. 6–12

Part B II

common borders. The signs bearing the indications set out in the Annex III shall be used if Member States provide separate lanes at those borders. Member States shall ensure that such lanes are clearly signposted, including where the rules relating to the use of the different lanes are waived as provided for in paragraph 4, in order to ensure optimal flow levels of persons crossing the border. 2. (a) Persons enjoying the right of free movement under Union law are entitled to use the lanes indicated by the sign in part A (‘EU, EEA, CH’) of Annex III. They may also use the lanes indicated by the sign in part B1 (‘visa not required’) and part B2 (‘all passports’) of Annex III. Third-country nationals who are not obliged to possess a visa when crossing the external borders of the Member States in accordance with Regulation (EC) No 539/2001 and third-country nationals who hold a valid residence permit or long-stay visa may use the lanes indicated by the sign in part B1 (‘visa not required’) of Annex III to this Regulation. They may also use the lanes indicated by the sign in part B2 (‘all passports’) of Annex III to this Regulation. (b) All other persons shall use the lanes indicated by the sign in part B2 (‘all passports’) of Annex III. The indications on the signs referred to in points (a) and (b) may be displayed in such language or languages as each Member State considers appropriate. The provision of separate lanes indicated by the sign in part B1 (‘visa not required’) of Annex III is not obligatory. Member States shall decide whether to do so and at which border crossing points in accordance with practical needs. 3. At sea and land border crossing points, Member States may separate vehicle traffic into different lanes for light and heavy vehicles and buses by using signs as shown in Part C of Annex III. Member States may vary the indications on those signs where appropriate in the light of local circumstances. 4. In the event of a temporary imbalance in traffic flows at a particular border crossing point, the rules relating to the use of the different lanes may be waived by the competent authorities for the time necessary to eliminate such imbalance.

Article 10 Stamping of the travel documents 1. The travel documents of third-country nationals shall be systematically stamped on entry and exit. In particular an entry or exit stamp shall be affixed to: (a) the documents, bearing a valid visa, enabling third-country nationals to cross the border; (b) the documents enabling third-country nationals to whom a visa is issued at the border by a Member State to cross the border; (c) the documents enabling third-country nationals not subject to a visa requirement to cross the border. 2. The travel documents of nationals of third countries who are members of the family of a Union citizen to whom Directive 2004/38/EC applies, but who do not present the residence card provided for in that Directive, shall be stamped on entry and exit. The travel documents of nationals of third countries who are members of the family of nationals of third countries enjoying the right of free movement under Union law, but who do not present the residence card provided for in Directive 2004/ 38/EC, shall be stamped on entry and exit. Epiney/Egbuna-Joss

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Entry and Border Controls

3. No entry or exit stamp shall be affixed: (a) to the travel documents of Heads of State and dignitaries whose arrival has been officially announced in advance through diplomatic channels; (b) to pilots’ licences or the certificates of aircraft crew members; (c) to the travel documents of seamen who are present within the territory of a Member State only when their ship puts in and in the area of the port of call; (d) to the travel documents of crew and passengers of cruise ships who are not subject to border checks in accordance with point 3.2.3 of Annex VI; (e) to documents enabling nationals of Andorra, Monaco and San Marino to cross the border; (f) to the travel documents of crews of passengers and goods trains on international connections; (g) to the travel documents of nationals of third countries who present a residence card provided for in Directive 2004/38/EC. 3. Exceptionally, at the request of a third-country national, insertion of an entry or exit stamp may be dispensed with if insertion might cause serious difficulties for that person. In that case, entry or exit shall be recorded on a separate sheet indicating that person’s name and passport number. That sheet shall be given to the third-country national. The competent authorities of the Member States may keep statistics of such exceptional cases and may provide those statistics to the Commission. 4. The practical arrangements for stamping are set out in Annex IV. 5. Whenever possible, third-country nationals shall be informed of the border guard’s obligation to stamp their travel document on entry and exit, even where checks are relaxed in accordance with Article 8. 6. The Commission shall report to the European Parliament and the Council by the end of 2008 on the operation of the provisions on stamping travel documents.

Article 11 Presumption as regards fulfilment of conditions of duration of stay 1. If the travel document of a third-country national does not bear an entry stamp, the competent national authorities may presume that the holder does not fulfil, or no longer fulfils, the conditions of duration of stay applicable within the Member State concerned. 2. The presumption referred to in paragraph 1 may be rebutted where the thirdcountry national provides, by any means, credible evidence, such as transport tickets or proof of his or her presence outside the territory of the Member States, that he or she has respected the conditions relating to the duration of a short stay. In such a case: (a) where the third-country national is found on the territory of a Member State applying the Schengen acquis in full, the competent authorities shall indicate, in accordance with national law and practice, in his or her travel document the date on which, and the place where, he or she crossed the external border of one of the Member States applying the Schengen acquis in full; (b) where the third-country national is found on the territory of a Member State in respect of which the decision contemplated in Article 3(2) of the 2003 Act of Accession has not been taken, the competent authorities shall indicate, in accordance with national law and practice, in his or her travel document the date on which, and the place where, he or she crossed the external border of such a Member State. 84

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Part B II

In addition to the indications referred to in points (a) and (b), a form as shown in Annex VIII may be given to the third-country national. Member States shall inform each other and the Commission and the Council General Secretariat of their national practices with regard to the indications referred to in this Article. 3. Should the presumption referred to in paragraph 1 not be rebutted, the thirdcountry national may be returned in accordance with 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-country nationals(22) and with national law respecting that Directive. 4. The relevant provisions of paragraph 1 and 2 shall apply mutatis mutandis in the absence of an exit stamp.

Article 12 Border surveillance 1. The main purpose of border surveillance shall be to prevent unauthorised border crossings, to counter cross-border criminality and to take measures against persons who have crossed the border illegally. A person who has crossed a border illegally and who has no right to stay on the territory of the Member State concerned shall be apprehended and made subject to procedures respecting Directive 2008/115/EC. 2. The border guards shall use stationary or mobile units to carry out border surveillance. That surveillance shall be carried out in such a way as to prevent and discourage persons from circumventing the checks at border crossing points. 3. Surveillance between border crossing points shall be carried out by border guards whose numbers and methods shall be adapted to existing or foreseen risks and threats. It shall involve frequent and sudden changes to surveillance periods, so that unauthorised border crossings are always at risk of being detected. 4. Surveillance shall be carried out by stationary or mobile units which perform their duties by patrolling or stationing themselves at places known or perceived to be sensitive, the aim of such surveillance being to apprehend individuals crossing the border illegally. Surveillance may also be carried out by technical means, including electronic means. 5. The Commission shall be empowered to adopt delegated acts in accordance with Article 33 concerning additional measures governing surveillance. Content I. Basic principles for the carrying out of border checks (Article 6). . . . . . . . . 1 1. Human dignity (Article 6(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2. Prohibition of discrimination (Article 6(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 II. Detailed guidelines for the conduction of border checks (Article 7). . . . . . 5 III. Separate lines for persons enjoying the right of free movement and third-country nationals (Article 9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 IV. Exceptional and temporary relaxation of border checks (Article 8) . . . . . . 7 V. Unstamped travel documents (Article 11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 VI. Principles on border surveillance (Article 12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

(22)

OJ L 348/98 (2008), p. 98.

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I. Basic principles for the carrying out of border checks (Article 6) 1

Article 6 codifies basic principles that shall be respected by the border guards when conducting border checks explained in detail in Article 7. This article was inserted at the behest of the European Parliament.86

1. Human dignity (Article 6(1)) 2

According to Article 6(1) (and in compliance with Article 1 EU Charter) border guards are to fully respect human dignity, and any measure taken by them has to be proportionate to the objectives of the measure in question. In cases involving vulnerable persons like e. g. children, unaccompanied minors and persons with serious health concerns, the border guards are urged to pay particular attention to these principles87. In compliance with Article 47 EU Charter, the Member States have to provide appropriate legal remedies against alleged infringements of this provision88.

2. Prohibition of discrimination (Article 6(2)) Article 6(2) prohibits any discriminatory treatment by border guards on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. The explicit prohibition of discrimination in Article 6(2) is a significant improvement; the SIC and the Common Manual did not contain a similar provision. It is worth pointing out that Article 6(2) does not prohibit differential treatment on grounds of nationality. Furthermore, the national authorities generally have rather broad discretionary powers when applying EU legislation in the field of immigration and border control. Nevertheless, a systematic differential treatment of for example black Africans or Muslim persons is clearly prohibited by Article 6 Regulation 562/2006. 4 The principle of non-discrimination on the grounds mentioned in Article 6(2) is also a general principle of law and thereby a fundamental right in EU law, which is further supported by the explicit codification in Article 21(2) EU Charter of Fundamental Rights89. The prohibition of discrimination on the grounds mentioned in Article 6(2) is therefore not only part of secondary but also of primary law, which can be relevant in case of conflict with other provisions of the regulation or other secondary law. The anti-discrimination directives that were adopted on the basis of Article 19 TFEU (formerly Article 13 EC Treaty) – in particular Directive 2000/4390 and Directive 2000/7891 – are, however, not applicable to the entry of third-country nationals into the EU territory since this area does not fall within the scope of application of these instruments.92 3

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See Peers, EJML 2006, p. 335 with further references. See also recital (7) Reg. 562/2006. 88 See ECJ, Zakira, C-23/12, EU:C:2013:24, para 40. 89 See above Article 3a. 90 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ 2000 L 180/22. 91 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ 2000 L 303/16. 92 See for example Article 3(2) Directive 2000/43/EC which explicitly excludes the area of entry into and residence in the territory of the Member States. The scope of application of Directive 2000/78/EC is restricted to the areas of employment and occupation. On the implications and its potential application of the Community’s non-discrimination principle to the EU rules on border control and visa see Cholewinski, in Anderson/Apap (eds), p. 81, 93 et seqq. 87

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II. Detailed guidelines for the conduction of border checks (Article 7) Article 7 states in detail the guidelines that have to be respected by the Member 5 States when conducting border checks. In comparison to Article 6 SIC, the guidelines are worded in much more detail and concern partially also rather technical aspects. A lot of the rules set out in Article 7 are self-explanatory and need no further analysis. As a matter of principle, all persons – including EU citizens and their family members and other persons making use of their right of free movement – shall undergo a minimum check when crossing the external borders with a view to establishing their identities (‘first-line check’; Article 7(2)). Third country nationals not enjoying the right of free movement shall be subjected to thorough checks (‘second-line checks’) on entry (Article 7(3)(a)) and on exit (Article 7(3)(b) and (c)). The third-country nationals subjected to a ‘second-line check’ are to be informed in writing in a language they understand or may be expected to understand, or in another effective way, of the purpose and the procedure of such a check. The written information has to be available in all official EU languages and the language of the neighbouring countries of the Member State concerned and must in particular indicate that the third-country nationals have an explicit right to request the name or identification number of the border guards carrying out the check (Article 7(5)).

III. Separate lines for persons enjoying the right of free movement and third-country nationals (Article 9) Considering the different intensity of checks to be carried out on persons enjoying 6 the rights of free movement laid down in EU law on the one hand and third-country nationals on the other hand, Member States shall provide separate lines for people subjected only to a first-line check and persons subjected to a thorough check (Article 9), making use of the signs set out in Annex III.93

IV. Exceptional and temporary relaxation of border checks (Article 8) In the event of exceptional and unforeseen circumstances, Article 8 allows the 7 exceptional and temporary relaxation of border checks in order to avoid excessive waiting times (Article 8(1)). Such a relaxation is only permissible if both exceptional and unforeseen circumstances exist. It can be concluded e contrario that Article 8 is not pertinent in situations of ‘normal’ and/or foreseeable heavy traffic at external borders. In such situations, it is the duty of the Member States to take the necessary steps with respect to the number of staff, infrastructure and organisation in order to deal with the heavy traffic. The question whether the circumstances are really ‘exceptional’ and ‘unforeseen’ cannot always be answered clearly, leaving some discretion to the Member States. If the checks are relaxed, checks on entry take priority over checks on exit (Article 8(2)), leaving the obligation to systematically stamp the travel documents according to Article 10 unaffected94 (Article 8(3)).

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Article 9 took over Council Decision 2004/581/EC, OJ 2004 L 261/36. Article 10 and Article 11 (presuming the non-fulfilment of the conditions of stay when the document is not stamped) took over the rules of Regulation 2133/2004, OJ 2004 L 369/5. 94

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V. Unstamped travel documents (Article 11) Article 11 concerns cases where the travel document does not bear an entry stamp. As a rule, the competent authorities may presume that the person does not or no longer fulfill the conditions of maximum duration of stay (Article 11(1)). This presumption can be rebutted under certain conditions (Article 11(2)). 9 If the presumption is not rebutted, the authorities may return the third-country national in accordance with the Return Directive 2008/115/EC and the relevant national law. The ECJ has, however, clarified that Article 11(3) does not constitute a mandatory obligation to expel the person.95 8

VI. Principles on border surveillance (Article 12) 10

Article 12 formulates some rather broad principles for the carrying out of border surveillance.96 With regards to sea border surveillance, the Council adopted some additional rules and guidelines in the form of Council Decision 2010/252/EU in 2010. The Council based its decision on former Article 12(5) Reg. 562/006 which provided for the possibility for additional measures to be adopted, following the so-called regulatory procedure with scrutiny (formerly in Article 33 (2) Reg. 562/2006), as long as the amendments concerned non-essential elements of the regulation. The Parliament brought an action for annulment against the Council, arguing that the Council had exceeded its implementing powers. The Court followed the Parliament’s reasoning and annulled the decision on procedural grounds97. Article 12(5) has since been amended98. The content of much of the annulled Council Decision was taken over by a later Commission proposal – this time following the ordinary legislative procedure – and adopted as the Sea Borders Regulation (EU) 565/ 2014 in May 201499.

Article 13 Refusal of entry 1. A third-country national who does not fulfil all the entry conditions laid down in Article 5(1) and does not belong to the categories of persons referred to in Article 5(4) shall be refused entry to the territories of the Member States. This shall be without prejudice to the application of special provisions concerning the right of asylum and to international protection or the issue of long-stay visas. 2. Entry may only be refused by a substantiated decision stating the precise reasons for the refusal. The decision shall be taken by an authority empowered by national law. It shall take effect immediately. The substantiated decision stating the precise reasons for the refusal shall be given by means of a standard form, as set out in Annex V, Part B, filled in by the authority 95

ECJ, Garcia and Cabrera, C-261/08 and C-348/08, EU:C:2009:648. See the definition in Article 2(11). 97 ECJ, European Parliament v. Council, C-355/10, EU:C:2012:516; see Cornelisse, CML Rev 51 (2014), p. 763–765. 98 See the remarks on Reg. 610/2013, above Article 1 MN 27. 99 See the extensive commentary on this regulation by Ryan, in this volume. 96

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empowered by national law to refuse entry. The completed standard form shall be handed to the third-country national concerned, who shall acknowledge receipt of the decision to refuse entry by means of that form. 3. Persons refused entry shall have the right to appeal. Appeals shall be conducted in accordance with national law. A written indication of contact points able to provide information on representatives competent to act on behalf of the thirdcountry national in accordance with national law shall also be given to the thirdcountry national. Lodging such an appeal shall not have suspensive effect on a decision to refuse entry. Without prejudice to any compensation granted in accordance with national law, the third-country national concerned shall, where the appeal concludes that the decision to refuse entry was ill-founded, be entitled to correction of the cancelled entry stamp, and any other cancellations or additions which have been made, by the Member State which refused entry. 4. The border guards shall ensure that a third-country national refused entry does not enter the territory of the Member State concerned. 5. Member States shall collect statistics on the number of persons refused entry, the grounds for refusal, the nationality of the persons who were refused entry and the type of border (land, air or sea) at which they were refused entry and submit them yearly to the Commission (Eurostat) 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 protection(23). 6. Detailed rules governing refusal of entry are given in Part A of Annex V. Content I. Refusal of entry (Article 13(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Procedural guarantees if entry is refused (Article 13(2) and (3)). . . . . . . . . . 1. Substantiated decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Right to appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Obligations of the carrier . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 4 6

I. Refusal of entry (Article 13(1)) Article 13 is the correlate to Article 5 and establishes the obligation of Member 1 States to refuse entry if the conditions of the latter provision are not fulfilled (Article 13(1)). This obligation is without prejudice to special provisions in the context of the right of asylum and the prohibition of refoulement100 and for holder of national visas authorising a longer stay.101

II. Procedural guarantees if entry is refused (Article 13(2) and (3)) If entry is refused, certain procedural guarantees found in Article 13(2) and (3) have 2 to be granted to the third-country national. Part A of Annex V contains further details on the procedures for refusing entry (Article 13(6)). (23)

OJ L 199, 31.7.2007, p. 23. Such cases are also already covered by the derogation provided for in Article 5(4)(c) Regulation (EC) no. 562/2006. 101 Peers, EJML 2006, p. 337 et seqq. 100

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Entry and Border Controls

The explicit inclusion of procedural guarantees in the Schengen Borders Code was an important achievement of the European Parliament during negotiations102 and a significant improvement compared to the rules contained in the SIC. The Common Manual contained rules similar to the ones codified in Article 13 but they were not legally binding.103

1. Substantiated decision 3

Article 13(2) makes it mandatory for the authorities to substantiate the refusal decision and to give precise reasons by making use of the standard form found in Annex V, part B of Regulation 562/2006 which contains a number of precisions on the procedure for refusing entry at the border. According to part A of Annex V(1)(a) the third-country national has to sign the form and shall be given a copy.104

2. Right to appeal The refusal decision will take immediate effect, but according to Article 13 (3) subpara. 1, the person refused entry has the right to appeal. The appeal will be conducted in accordance with national law and the refused third-country national is to be informed about how to find legal representation in order to lodge the appeal.105 The appeal may only be addressed against the decision to refuse entry, and not against other alleged infringements in relation to the refusal decision.106 5 Such an appeal will, however, have no suspensive effect (Article 13(3) subpara. 2) with the result that the third-country national cannot enter or remain in the territory of the Schengen states whose external borders he intended to cross. This is also stated in Article 13(4) that obliges the border guards to make sure that the third-country national does not enter the Member State concerned. 4

III. Obligations of the carrier 6

In situations where the third-country national has arrived at the border by a carrier, Annex V, Part A(3) authorises the border guards to order the carrier to bring the thirdcountry national back to the third country from which he was brought without delay.

CHAPTER III Staff and resources for border control and cooperation between Member States Article 14 Staff and resources for border control Member States shall deploy appropriate staff and resources in sufficient numbers to carry out border control at the external borders, in accordance with Articles 6 to 13, in such a way as to ensure an efficient, high and uniform level of control at their external borders. 102

See Brouwer, Digital Borders, p. 290. See Peers, EJML 2006, p. 338 et seq. 104 See Brouwer, Digital Borders, p. 290. 105 See Brouwer, Digital Borders, p. 290. 106 ECJ, Zakaria, C-23/12, EU:C:2013:24, paras 40, 42. 103

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Art. 17

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Article 15 Implementation of controls 1. The border control provided for by Articles 6 to 13 shall be carried out by border guards in accordance with the provisions of this Regulation and with national law. When carrying out that border control, the powers to instigate criminal proceedings conferred on border guards by national law and falling outside the scope of this Regulation shall remain unaffected. Member States shall ensure that the border guards are specialised and properly trained professionals, taking into account common core curricula for border guards established and developed by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States established by Council Regulation (EC) No 2007/2004. Training curricula shall include specialised training for detecting and dealing with situations involving vulnerable persons, such as unaccompanied minors and victims of trafficking. Member States, with the support of the Agency, shall encourage border guards to learn the languages necessary for the carrying-out of their tasks. 2. Member States shall notify to the Commission the list of national services responsible for border control under their national law in accordance with Article 34. 3. To control borders effectively, each Member State shall ensure close and constant cooperation between its national services responsible for border control.

Article 16 Cooperation between Member States 1. The Member States shall assist each other and shall maintain close and constant cooperation with a view to the effective implementation of border control, in accordance with Articles 6 to 15. They shall exchange all relevant information. 2. Operational cooperation between Member States in the field of management of external borders shall be coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States (hereinafter referred to as the Agency) established by Regulation (EC) No 2007/2004. 3. Without prejudice to the competences of the Agency, Member States may continue operational cooperation with other Member States and/or third countries at external borders, including the exchange of liaison officers, where such cooperation complements the action of the Agency. Member States shall refrain from any activity which could jeopardise the functioning of the Agency or the attainment of its objectives. Member States shall report to the Agency on the operational cooperation referred to in the first subparagraph. 4. Member States shall provide for training on the rules for border control and on fundamental rights. In that regard, account shall be taken of the common training standards as established and further developed by the Agency.

Article 17 Joint control 1. Member States which do not apply Article 20 to their common land borders may, up to the date of application of that Article, jointly control those common Epiney/Egbuna-Joss

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Part B II Art. 19

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borders, in which case a person may be stopped only once for the purpose of carrying out entry and exit checks, without prejudice to the individual responsibility of Member States arising from Articles 6 to 13. To that end, Member States may conclude bilateral arrangements between themselves. 2. Member States shall inform the Commission of any arrangements concluded in accordance with paragraph 1.

CHAPTER IV Specific rules for border checks Article 18 Specific rules for the various types of border and the various means of transport used for crossing the external borders The specific rules set out in Annex VI shall apply to the checks carried out at the various types of border and on the various means of transport used for crossing border crossing points. Those specific rules may contain derogations from Articles 4 and 5 and Articles 7 to 13.

Article 19 Specific rules for checks on certain categories of persons 1. The specific rules set out in Annex VII shall apply to checks on the following categories of persons: (a) Heads of State and the members of their delegation(s); (b) pilots of aircraft and other crew members; (c) seamen; (d) holders of diplomatic, official or service passports and members of international organisations; (e) cross-border workers; (f) minors; (g) rescue services, police and fire brigades and border guards; (h) offshore workers. Those specific rules may contain derogations from Articles 4 and 5 and Articles 7 to 13. 2. Member States shall notify to the Commission the model cards issued by their Ministries of Foreign Affairs to accredited members of diplomatic missions and consular representations and members of their families in accordance with Article 34.

Article 19a By way of derogation from the provisions of this Regulation relating to the establishment of border crossing points, and until the entry into force of a decision by the Council on the full application of the provisions of the Schengen acquis in Croatia pursuant to Article 4(2) of the Act of Accession or until this Regulation is amended to include provisions governing border control at common border crossing 92

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points, whichever is the earlier, Croatia may maintain the common border crossing points at its border with Bosnia and Herzegovina. At these common border crossing points, border guards of one party shall carry out entry and exit checks on the territory of the other party. All entry and exit checks by Croatian border guards shall be carried out in compliance with the acquis of the Union, including Member States’ obligations as regards international protection and non-refoulement. The relevant bilateral agreements establishing the common border crossing points in question shall, if necessary, be amended to that end. Articles 14–17, 19a Regulation 562/2006 provide rules on the necessary staff and 1 resources for border control (Article 14), the implementation of the controls by national border guards and the obligation of Member States to properly train them (Article 15), on the cooperation between Member States and between Member States and FRONTEX (Article 16) as well as rules on the common control of land borders of States that are not yet full Schengen Members and have therefore not yet abolished the checks at internal borders pursuant to Article 20 Regulation 562/2006 (Article 17). Article 19a allows Croatia to make certain derogations from Reg. 562/2006 with regards to its common border crossing points with Bosnia-Herzegovina until it becomes a full Schengen Member State. Articles 18 and 19 contain specific rules on various types of borders and certain 2 categories of persons that are explained in greater detail in the annexes VI and VII.

CHAPTER IVa Specific measures in the case of serious deficiencies relating to external border control Article 19a Measures at external borders and support by the Agency 1. Where serious deficiencies in the carrying out of external border control are identified in an evaluation report drawn up pursuant to Article 14 of Council Regulation (EU) No 1053/2013 of 7 October 2013 establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis(24), and with a view to ensuring compliance with the recommendations referred to in Article 15 of that Regulation, the Commission may recommend, by means of an implementing act, that the evaluated Member State take certain specific measures, which may include one or both of the following: (a) initiating the deployment of European border guard teams in accordance with Regulation (EC) No 2007/2004; (b) submitting its strategic plans, based on a risk assessment, including information on the deployment of personnel and equipment, to the Agency for its opinion thereon. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 33a(2). 2. The Commission shall inform the committee established pursuant to Article 33a(1) on a regular basis of the progress in the implementation of the measures referred to in paragraph 1 of this Article and on its impact on the deficiencies identified. (24)

OJ L 295, 6.11.2013, p. 27.

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It shall also inform the European Parliament and the Council. 3. Where an evaluation report as referred to in paragraph 1 has concluded that the evaluated Member State is seriously neglecting its obligations and must therefore report on the implementation of the relevant action plan within three months in accordance with Article 16(4) of Regulation (EU) No 1053/2013, and where, following that three-month period, the Commission finds that the situation persists, it may trigger the application of the procedure provided for in Article 26 of this Regulation where all the conditions for doing so are fulfilled. Article 19a was introduced as part of the so-called ‘Schengen Governance package’ in November 2013107. It needs to be read in conjunction with the new rules on the temporary reintroduction of internal border controls (Art. 23–30). 2 If an evaluation report drawn up pursuant to Article 37a in conjunction with Regulation 1053/2013 identifies that there are serious deficiencies in the carrying out of external border controls of a Schengen State, the Commission may recommend certain measures to the Member State concerned, including in particular the deployment of European border guard teams in accordance with the FRONTEX Regulation 2007/2004 and the submission of the Commissions strategic plans to FRONTEX for its opinion thereon. 3 The Commission has to inform the Committee established pursuant to Article 33a(1) as well as the Parliament and the Council on the progress and the impact of these measures. 4 If the evaluated Member State is seriously neglecting its external border control obligations, it has to report on the implementation of the drawn-up action plan after three months. If the problems still persist and put the overall functioning of the area without internal border control at risk, Article 26 Reg. 562/2006 may apply. According to that provision, the Council may exceptionally and as a last resort recommend that one or more Member State(s) may reintroduce internal border controls for up to six months.108 1

TITLE III INTERNAL BORDERS CHAPTER I Abolition of border control at internal borders Article 20 Crossing internal borders Internal borders may be crossed at any point without a border check on persons, irrespective of their nationality, being carried out.

Article 21 Checks within the territory The abolition of border control at internal borders shall not affect: 107 108

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See below Articles 23–31 MN 3. See in more detail the comments on Articles 23–31 below.

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(a) the exercise of police powers by the competent authorities of the Member States under national law, insofar as the exercise of those powers does not have an effect equivalent to border checks; that shall also apply in border areas. Within the meaning of the first sentence, the exercise of police powers may not, in particular, be considered equivalent to the exercise of border checks when the police measures: (i) do not have border control as an objective, (ii) are based on general police information and experience regarding possible threats to public security and aim, in particular, to combat cross-border crime, (iii) are devised and executed in a manner clearly distinct from systematic checks on persons at the external borders, (iv) are carried out on the basis of spot-checks; (b) security checks on persons carried out at ports and airports by the competent authorities under the law of each Member State, by port or airport officials or carriers, provided that such checks are also carried out on persons travelling within a Member State; (c) the possibility for a Member State to provide by law for an obligation to hold or carry papers and documents; (d) the possibility for a Member State to provide by law for an obligation on thirdcountry nationals to report their presence on its territory pursuant to the provisions of Article 22 of the Schengen Convention.

Article 22 Removal of obstacles to traffic at road crossing-points at internal borders Member States shall remove all obstacles to fluid traffic flow at road crossingpoints at internal borders, in particular any speed limits not exclusively based on road-safety considerations. At the same time, Member States shall be prepared to provide for facilities for checks in the event that internal border controls are reintroduced. Content I. General principle: absence of internal border controls (Article 20) . . . . . . . II. Checks within the territory of Member States (Article 21). . . . . . . . . . . . . . . . . 1. Police controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Checks at ports and airports, the obligation to carry papers, and the obligation of third-country nationals to report their presence. . . . . . . . . . 3. Jurisprudence of the ECJ. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 4 5

I. General principle: absence of internal border controls (Article 20) Article 20 states the principle that internal borders may be crossed at any point 1 without border checks on persons. This principle was previously codified in Article 2(1) SIC. Closely connected to the elimination of internal border controls is the obligation to remove all obstacles to traffic in Article 22.

II. Checks within the territory of Member States (Article 21) 1. Police controls The elimination of controls at internal borders does not affect the right of Member 2 States to carry out police controls within their territory. Such controls are rather Epiney/Egbuna-Joss

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regarded as ‘compensatory measures’ for the lifting of border controls, recurring for example to the methods of ‘dragnet controls’ (temporarily limited control of persons in the border area or further inside the territory) or of ‘target search’ (targeted search for persons by specialised police entities).109 Such measures have sometimes to be provided for in the national legal orders of the Member States concerned and must be in conformity with EU law. They may therefore especially not have effects equivalent to border checks, which is explicitly prohibited in Article 21(a). The latter provision lists in a non-exhaustive manner the measures to be considered as non-equivalent to border checks. Border checks are essentially characterized by being carried out irrespective of suspicion, in a stationary manner and by being carried out on the sole ground of crossing of the border. ‘Normal’ national police measures will usually not have all these characteristics and therefore not be considered to have equivalent effects to border checks. However, systematic police controls in the border area if carried out without suspicion are not in conformity with Article 20 since their effect is similar to actual border controls and compromise the effectiveness of the prohibition of internal border controls.

2. Checks at ports and airports, the obligation to carry papers, and the obligation of third-country nationals to report their presence 3

Article 21(b) clarifies that the principle of absence of internal border checks on person does not affect the admissibility of security checks at ports and airports as long as they are carried out in a non-discriminatory manner. Article 21(c) provides that national laws on the obligation to carry papers or documents remain unaffected allowing therefore the competent authorities to demand in conformity with their national law that papers and documents must be carried along and produced if requested. Equally unaffected remains a possible obligation of third-country nationals according to national law to report their presence in the territory of a Schengen state pursuant to Article 22 SIC (Article 21(d)).

3. Jurisprudence of the ECJ The ECJ has had the opportunity to clarify the meaning of police checks which are of equivalent effects to border checks. The joint cases of Melki and Abdeli,110 concerned a French law which allowed the French police authorities to check the identity of anyone in the border area irrespective of the behaviour of the person concerned and of specific circumstances. Even though the Court acknowledged that these provision did not have the same objective as border controls but aimed at establishing whether the obligations to hold, carry and produce identity papers were fulfilled (see Article 21(c)), it held that the French law did not contain enough safeguards ‘in particular in relation to the intensity and frequency of the controls’, and that those checks might have effects equivalent to border checks in practice and were therefore precluded by Article 21(a). 5 In Adil111, the Court considered a Dutch law to be in compliance with the requirements of the Schengen Borders Code. The law permitted officials responsible for border surveillance to carry out checks near the border with a view to establishing whether the persons stopped satisfied the requirements for lawful residence in the Netherlands. The 4

109 See Epiney/Meier/Egbuna-Joss, ‘Schengen/Dublin’, in Thu ¨ rer/Weber/Portmann/Kellerhals (eds), Bilaterale Vertra¨ge I & II Schweiz – EU (Schultheiss, 2007), p. 903, 927 with further references. 110 ECJ, Melki and Abdeli, C-188/10 and C-189/10, EU:C:2010:206, paras 70–75. 111 ECJ, Adil, C-278/12, EU:C:2012:508, paras 72–87.

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ECJ held that these checks which were aimed at combatting illegal residence had a different objective than border checks. Since the law in question contained detailed rules and limitations in order to define the intensity, frequency and selectivity of the checks, the Court was satisfied that such checks did not have an equivalent effect to border checks.

CHAPTER II Temporary reintroduction of border control at internal borders Article 23 General framework for the temporary reintroduction of border control at internal borders 1. Where, in the area without internal border control, there is a serious threat to public policy or internal security in a Member State, that Member State may exceptionally reintroduce border control at all or specific parts of its internal borders for a limited period of up to 30 days or for the foreseeable duration of the serious threat if its duration exceeds 30 days. The scope and duration of the temporary reintroduction of border control at internal borders shall not exceed what is strictly necessary to respond to the serious threat. 2. Border control at internal borders shall only be reintroduced as a last resort, and in accordance with Articles 24, 25 and 26. The criteria referred to, respectively, in Articles 23a and 26a shall be taken into account in each case where a decision on the reintroduction of border control at internal borders is considered pursuant, respectively, to Article 24, 25 or 26. 3. If the serious threat to public policy or internal security in the Member State concerned persists beyond the period provided for in paragraph 1 of this Article, that Member State may prolong border control at its internal borders, taking account of the criteria referred to in Article 23a and in accordance with Article 24, on the same grounds as those referred to in paragraph 1 of this Article and, taking into account any new elements, for renewable periods of up to 30 days. 4. The total period during which border control is reintroduced at internal borders, including any prolongation provided for under paragraph 3 of this Article, shall not exceed six months. Where there are exceptional circumstances as referred to in Article 26, that total period may be extended to a maximum length of two years, in accordance with paragraph 1 of that Article.

Article 23a Criteria for the temporary reintroduction of border control at internal borders Where a Member State decides, as a last resort, on the temporary reintroduction of border control at one or more of its internal borders or at parts thereof, or decides to prolong such reintroduction, in accordance with Article 23 or Article 25(1), it shall assess the extent to which such a measure is likely to adequately remedy the threat to public policy or internal security, and shall assess the proportionality of the measure in relation to that threat. In making such an assessment, the Member State shall, in particular, take the following into account:

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(a) the likely impact of any threats to its public policy or internal security, including following terrorist incidents or threats and including those posed by organised crime; (b) the likely impact of such a measure on free movement of persons within the area without internal border control.

Article 24 Procedure for the temporary reintroduction of border control at internal borders under Article 23(1) 1. Where a Member State plans to reintroduce border control at internal borders under Article 23(1), it shall notify the other Member States and the Commission at the latest four weeks before the planned reintroduction, or within a shorter period where the circumstances giving rise to the need to reintroduce border control at internal borders become known less than four weeks before the planned reintroduction. To that end, the Member State shall supply the following information: (a) the reasons for the proposed reintroduction, including all relevant data detailing the events that constitute a serious threat to its public policy or internal security; (b) the scope of the proposed reintroduction, specifying at which part or parts of the internal borders border control is to be reintroduced; (c) the names of the authorised crossing-points; (d) the date and duration of the planned reintroduction; (e) where appropriate, the measures to be taken by the other Member States. A notification under the first subparagraph may also be submitted jointly by two or more Member States. If necessary, the Commission may request additional information from the Member State(s) concerned. 2. The information referred to in paragraph 1 shall be submitted to the European Parliament and to the Council at the same time as it is notified to the other Member States and to the Commission pursuant to that paragraph. 3. Member States making a notification under paragraph 1 may, where necessary and in accordance with national law, decide to classify parts of the information. Such classification shall not preclude information from being made available by the Commission to the European Parliament. The transmission and handling of information and documents transmitted to the European Parliament under this Article shall comply with rules concerning the forwarding and handling of classified information which are applicable between the European Parliament and the Commission. 4. Following notification by a Member State under paragraph 1 of this Article and with a view to consultation provided for in paragraph 5 of this Article, the Commission or any other Member State may, without prejudice to Article 72 of the Treaty on the Functioning of the European Union, issue an opinion. If, based on the information contained in the notification or on any additional information it has received, the Commission has concerns as regards the necessity or proportionality of the planned reintroduction of border control at internal borders, or if it considers that a consultation on some aspect of the notification would be appropriate, it shall issue an opinion to that effect. 5. The information referred to in paragraph 1 and any Commission or Member State opinion under paragraph 4 shall be the subject of consultation, including, where appropriate, joint meetings between the Member State planning to reintroduce 98

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border control at internal borders, the other Member States, especially those directly affected by such measures, and the Commission, with a view to organising, where appropriate, mutual cooperation between the Member States and to examining the proportionality of the measures to the events giving rise to the reintroduction of border control and the threat to public policy or internal security. 6. The consultation referred to in paragraph 5 shall take place at least ten days before the date planned for the reintroduction of border control.

Article 25 Specific procedure for cases requiring immediate action 1. Where a serious threat to public policy or internal security in a Member State requires immediate action to be taken, the Member State concerned may, on an exceptional basis, immediately reintroduce border control at internal borders, for a limited period of up to ten days. 2. Where a Member State reintroduces border control at internal borders, it shall at the same time notify the other Member States and the Commission accordingly, and shall supply the information referred to in Article 24(1), including the reasons that justify the use of the procedure set out in this Article. The Commission may consult the other Member States immediately upon receipt of the notification. 3. If the serious threat to public policy or internal security persists beyond the period provided for in paragraph 1, the Member State may decide to prolong the border control at internal borders for renewable periods of up to 20 days. In doing so, the Member State concerned shall take into account the criteria referred to in Article 23a, including an updated assessment of the necessity and the proportionality of the measure, and shall take into account any new elements. In the event of such a prolongation, the provisions of Article 24(4) and (5) shall apply mutatis mutandis, and the consultation shall take place without delay after the decision to prolong has been notified to the Commission and to the Member States. 4. Without prejudice to Article 23(4), the total period during which border control is reintroduced at internal borders, on the basis of the initial period under paragraph 1 and any prolongations under paragraph 3, shall not exceed two months. 5. The Commission shall inform the European Parliament without delay of notifications made under this Article.

Article 26 Specific procedure where exceptional circumstances put the overall functioning of the area without internal border control at risk 1. In exceptional circumstances where the overall functioning of the area without internal border control is put at risk as a result of persistent serious deficiencies relating to external border control as referred to in Article 19a, and insofar as those circumstances constitute a serious threat to public policy or internal security within the area without internal border control or within parts thereof, border control at internal borders may be reintroduced in accordance with paragraph 2 of this Article for a period of up to six months. That period may be prolonged, no more than three times, for a further period of up to six months if the exceptional circumstances persist. 2. The Council may, as a last resort and as a measure to protect the common interests within the area without internal border control, where all other measures, in Epiney/Egbuna-Joss

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particular those referred to in Article 19a(1), are ineffective in mitigating the serious threat identified, recommend that one or more Member States decide to reintroduce border control at all or at specific parts of their internal borders. The Council’s recommendation shall be based on a proposal from the Commission. The Member States may request the Commission to submit such a proposal to the Council for a recommendation. In its recommendation, the Council shall at least indicate the information referred to in points (a) to (e) of Article 24(1). The Council may recommend a prolongation in accordance with the conditions and procedure set out in this Article. Before a Member State reintroduces border control at all or at specific parts of its internal borders under this paragraph, it shall notify the other Member States, the European Parliament and the Commission accordingly. 3. In the event that the recommendation referred to in paragraph 2 is not implemented by a Member State, that Member State shall without delay inform the Commission in writing of its reasons. In such a case, the Commission shall present a report to the European Parliament and to the Council assessing the reasons provided by the Member State concerned and the consequences for protecting the common interests of the area without internal border control. 4. On duly justified grounds of urgency relating to situations where the circumstances giving rise to the need to prolong border control at internal borders in accordance with paragraph 2 become known less than 10 days before the end of the preceding reintroduction period, the Commission may adopt any necessary recommendations by means of immediately applicable implementing acts in accordance with the procedure referred to in Article 33a(3). Within 14 days of the adoption of such recommendations, the Commission shall submit to the Council a proposal for a recommendation in accordance with paragraph 2. 5. This Article shall be without prejudice to measures that may be adopted by the Member States in the event of a serious threat to public policy or internal security under Articles 23, 24 and 25.

Article 26a Criteria for the temporary reintroduction of border control at internal borders where exceptional circumstances put the overall functioning of the area without internal border control at risk 1. Where, as a last resort, the Council recommends in accordance with Article 26(2) the temporary reintroduction of border control at one or more internal borders or at parts thereof, it shall assess the extent to which such a measure is likely to adequately remedy the threat to public policy or internal security within the area without internal border control, and shall assess the proportionality of the measure in relation to that threat. That assessment shall be based on the detailed information submitted by the Member State(s) concerned and by the Commission and any other relevant information, including any information obtained pursuant to paragraph 2 of this Article. In making such an assessment, the following considerations shall in particular be taken into account: (a) the availability of technical or financial support measures which could be or have been resorted to at national or Union level, or both, including assistance by 100

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Union bodies, offices or agencies, such as the Agency, the European Asylum Support Office, established by Regulation (EU) No 439/2010 of the European Parliament and of the Council(25) or the European Police Office (‘Europol’), established by Council Decision 2009/371/JHA(26), and the extent to which such measures are likely to adequately remedy the threat to public policy or internal security within the area without internal border control; (b) the current and likely future impact of any serious deficiencies relating to external border control identified in the context of the evaluations carried out pursuant to Regulation (EU) No 1053/2013 and the extent to which such serious deficiencies constitute a serious threat to public policy or internal security within the area without internal border control; (c) the likely impact of the reintroduction of border control on the free movement of persons within the area without internal border control. 2. Before adopting a proposal for a Council recommendation, in accordance with Article 26(2), the Commission may: (a) request Member States, the Agency, Europol or other Union bodies, offices or agencies to provide it with further information; (b) carry out on-site visits, with the support of experts from Member States and of the Agency, Europol or any other relevant Union body, office or agency, in order to obtain or verify information relevant for that recommendation.

Article 27 Informing the European Parliament and the Council The Commission and the Member State(s) concerned shall inform the European Parliament and the Council as soon as possible of any reasons which might trigger the application of Articles 19a and 23 to 26a.

Article 28 Provisions to be applied where border control is reintroduce at internal borders Where border control at internal borders is reintroduced, the relevant provisions of Title II shall apply mutatis mutandis.

Article 29 Report on the reintroduction of border control at internal borders Within four weeks of the lifting of border control at internal borders, the Member State which has carried out border control at internal borders shall present a report to the European Parliament, the Council and the Commission on the reintroduction of border control at internal borders, outlining, in particular, the initial assessment and the respect of the criteria referred to in Articles 23a, 25 and 26a, the operation of the checks, the practical cooperation with neighbouring Member States, the resulting impact on the free movement of persons, the effectiveness of the reintroduction of (25) (26)

OJ L 132, 29.5.2010, p. 11. OJ L 121, 15.5.2009, p. 37.

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border control at internal borders, including an ex-post assessment of the proportionality of the reintroduction of border control. The Commission may issue an opinion on that ex-post assessment of the temporary reintroduction of border control at one or more internal borders or at parts thereof. The Commission shall present to the European Parliament and to the Council, at least annually, a report on the functioning of the area without internal border control. The report shall include a list of all decisions to reintroduce border control at internal borders taken during the relevant year.

Article 30 Informing the public The Commission and the Member State concerned shall inform the public in a coordinated manner on a decision to reintroduce border control at internal borders and indicate in particular the start and end date of such a measure, unless there are overriding security reasons for not doing so.

Article 31 Confidentiality At the request of the Member State concerned, the other Member States, the European Parliament and the Commission shall respect the confidentiality of information supplied in connection with the reintroduction and prolongation of border control and the report drawn up under Article 29. Content I. Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. The new rules on the temporary reintroduction of internal border controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Temporary internal border controls in the case of foreseeable events (Articles 23, 23a, 24) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Temporary internal border controls in the case of unforeseeable circumstances (Article 25) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Temporary internal border controls in the case of exceptional circumstances (Articles. 26, 26a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Judicial control and the rights of Union citizens and their family members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 4 5 8 10 11

I. Overview 1

Article 23 provides for the possibility to temporarily reintroduce internal border controls in order to safeguard public policy or internal security or the overall functioning of the area without internal border control.112 If controls are temporarily reinstated, the rules for external border control in Title II of Reg. 562/2006 apply mutatis mutandis (Article 28). 112 See in this context the analysis of temporary re-instatement of internal border controls under the SIC in Groenendijk, ELJ 2004, p. 150–170.

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Articles 23a–26a contain the criteria for the temporary reintroduction as well as the 2 corresponding procedural regulations. If there are any indication that the reintroduction of internal border controls might become necessary, the Commission and the Member State(s) concerned must inform the European Parliament and the Council (Article 27). In principle, the public has to be informed fully of the reasons for the re-instatement of controls (Article 30), and the Member State concerned needs to present a report after the controls have been lifted again, detailing in particular the initial assessment, the impact of the controls on the free movement of person and the effectiveness of the controls (Article 29).

II. Background In the first half of 2011, 30’000 Tunisians arrived at Italy’s shores following the 3 upheavals of the ‘Arab Spring’. After unsuccessfully appealing for support from the EU and the other Schengen States, Italy issued temporary residence cards – in violation of the Schengen Borders Code – that allowed these Tunisian citizens to travel onwards to other Schengen states. As a response, France reintroduced internal border controls on its border to Italy. France and Italy then jointly requested a revision of the rules on the reintroduction of internal border controls as well as the modification of the existing evaluation mechanism. The Commission presented two proposals in September 2011. Two years later – and after a lot of political tensions between the Member States and the Commission as well as the European Parliament and the Council – the so called ‘Schengen Governance Package’ was adopted in the form of Regulation 1051/2013 and Regulation 1053/ 2013113. It entered into force in November 2013 with a one year transitional period for implementation.

III. The new rules on the temporary reintroduction of internal border controls The new rules set out in more detail and with stricter time limits the criteria and the 4 procedures for the reintroduction of internal border controls. Three different situations may be distinguished and shall be discussed in turn.

1. Temporary internal border controls in the case of foreseeable events (Articles 23, 23a, 24) Member States may exceptionally and as a last resort reintroduce border control for 5 up to 30 days in the case of a foreseeable serious threat to public policy or internal security (e. g. major political or sport events). If the threat persists, the internal border controls may be prolonged up to a maximum of six months (Article 23). The substantive requirements of Article 23 are rather strict, although it is obvious that the reference to the notions of public policy and internal security will give the Member States a certain margin of discretion. When deciding on the reintroduction of border controls, the Member State con- 6 cerned needs to assess the necessity (whether the controls are likely to address threat) as well as their proportionality in relation to the threat. The impact on the measures on the 113 The different positions of the institution can be found in detail in Peers, The Future of Schengen, p. 30–41.

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free movement of persons must be taken into account when making the assessment (Article 23a). 7 The Commission, the Parliament, the Council and the other Member States shall be notified of the planned reintroduction of internal border controls at least four weeks ahead of time (Article 24(1), (2)). The Commission and any Member State may issue an opinion and consultation and joint meetings shall be held before the controls are introduced (Article 24(4)–(6))114.

2. Temporary internal border controls in the case of unforeseeable circumstances (Article 25) If the serious threat to public policy or internal security (e. g. a terrorist attack) requires immediate action, the Member States concerned may immediately reintroduce border controls for up to ten days (para. 1). If the threat persists, the period for the controls may be prolonged by periods of 20 days (para. 3), the maximum duration is, however, limited to two months (para. 4). In case of a prolongation of the controls, the criteria set out in Article 23a and the procedural provision of Articles 24 (4) and (5) apply mutatis mutandis. 9 In September of 2015, several Member States, including Germany and Austia, reintroduced temporary border controls based on the extraordinary influx of persons seeking international protection. This spontaneous and uncontrolled inflow was considered a serious threat to the internal security and public policy and the temporary reintroduction of border controls was intended to provide appropriate assistance to the arriving persons including more structured procedures, especially in terms of registration. In its opinion, the Commission recalled that migratory flows cannot per se justify the reintroduction of checks at internal borders, but considered the measures nevertheless justified, necessary and proportional due to the sheer number of persons entering theses Member States.115 8

3. Temporary internal border controls in the case of exceptional circumstances (Articles. 26, 26a) 10

If a Member State is seriously neglecting its obligation of external border controls, the measures recommended by the Commission pursuant to Article 19a have remained without effect, and the overall functioning of the area without internal border control is put at risk, the Commission may recommend that the Council, as a last resort, proposes controls at the internal borders for a period of up to six months. The controls may be prolonged for three additional six month periods, if the risk persists (Article 26). The criteria for the reintroduction of controls pursuant to Art. 26 are found in Article 26a. When deciding on the reintroduction, the Council has to assess the necessity and proportionality of such measures, as well as alternative measures like the assistance by Union bodies and agencies such as Europol, the impact of the serious deficiencies in external border controls on the public policy and internal security of Member States, and the likely impact of the internal border controls on the free movement of persons.116

114

See in more detail Pascouau, The Schengen Governance Package, p. 4. Comission Opinion of 23.10.2015 on the necessity and proportionality of the controls at internal borders reintroduced by Germany and Austria pursuant to article 24(4) of Regulation no 562/2006, C(2015) 7100 final. 116 See Pascouau, The Schengen Governance Package, p. 6–7; Peers,The Future of Schengen, p. 44–45. 115

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Part B II

IV. Judicial control and the rights of Union citizens and their family members Since the entry into force of the Treaty of Lisbon on 1 December 2009, the lawfulness 11 of such measures can be examined by the Court of Justice. The former restriction on the Court’s jurisdiction in Article 68(2) EC Treaty117 had not allowed such an examination by the Court. It has to be stressed that even the temporary reintroduction of internal border checks 12 pursuant to Article 23 et seqq. does not affect the right of free movement of Union citizens and their family members, which already results from Article 3 Regulation 562/2006. A refusal of entry to such persons must therefore comply with the rather strict requirements of EU Law in general and with Directive 2004/38 in particular.

TITLE IV FINAL PROVISIONS Article 32 Amendments to the Annexes The Commission shall be empowered to adopt delegated acts in accordance with Article 33 concerning amendments to Annexes III, IV and VIII.

Article 33 Exercise of the delegation 1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article. 2. The power to adopt delegated acts referred to in Article 12(5) and Article 32 shall be conferred on the Commission for an indeterminate period of time from 19 July 2013. 3. The delegation of powers referred to in Article 12(5) and Article 32 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force. 4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council. 5. A delegated act adopted pursuant to Article 12(5) and Article 32 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council. 117

See the comments on judicial protection above, Article 1 MN 19–20.

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Article 33a Committee procedure 1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers(27). 2. Where reference is made to this paragraph, Article 5 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. 3. Where reference is made to this paragraph, Article 8 of Regulation (EU) No 182/ 2011, in conjunction with Article 5 thereof, shall apply.

Article 34 Notifications 1. Member States shall notify the Commission of: (a) the list of residence permits, distinguishing between those covered by point (a) of point 15 of Article 2 and those covered by point (b) of point 15 of Article 2 and accompanied by a specimen for permits covered by point (b) of point 15 of Article 2. Residence cards issued in accordance with Directive 2004/38/EC shall be specifically highlighted as such and specimens shall be provided for those residence cards which have not been issued in accordance with the uniform format laid down by Regulation (EC) No 1030/2002; (b) the list of their border crossing points; (c) the reference amounts required for the crossing of their external borders fixed annually by the national authorities; (d) the list of national services responsible for border control; (e) the specimen of model cards issued by Foreign Ministries; (ea) the exceptions to the rules regarding the crossing of the external borders referred to in point (a) of Article 4(2); (eb) the statistics referred to in Article 10(3). 2. The Commission shall make the information notified in conformity with paragraph 1 available to the Member States and the public through publication in the Official Journal of the European Union, C Series, and by any other appropriate means.

Article 35 Local border traffic This Regulation shall be without prejudice to Community rules on local border traffic and to existing bilateral agreements on local border traffic.

(27)

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OJ L 55/13 (2011).

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Art. 32–40

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Article 36 Ceuta and Melilla The provisions of this Regulation shall not affect the special rules applying to the cities of Ceuta and Melilla, as defined in the Declaration by the Kingdom of Spain on the cities of Ceuta and Melilla in the Final Act to the Agreement on the Accession of the Kingdom of Spain to the Convention implementing the Schengen Agreement of 14 June 1985(28).

Article 37 Notification of information by the Member States The Member States shall notify the Commission of national provisions relating to Article 21(c) and (d), the penalties as referred to in Article 4(3) and the bilateral agreements authorised by this Regulation. Subsequent changes to those provisions shall be notified within five working days. The information notified by the Member States shall be published in the Official Journal of the European Union, C Series.

Article 37a Evaluation mechanism 1. In accordance with the Treaty on the Functioning of the European Union and the Treaty on European Union and without prejudice to their provisions on infringement procedures, the implementation by each Member State of this Regulation shall be evaluated through an evaluation mechanism. 2. The rules on the evaluation mechanism are specified in Regulation (EU) No 1053/2013. In accordance with that evaluation mechanism, the Member States and the Commission are, jointly, to conduct regular, objective and impartial evaluations in order to verify the correct application of this Regulation and the Commission is to coordinate the evaluations in close cooperation with the Member States. Under that mechanism, every Member State is evaluated at least every five years by a small team consisting of Commission representatives and of experts designated by the Member States. Evaluations may consist of announced or unannounced on-site visits at external or internal borders. In accordance with that evaluation mechanism, the Commission is responsible for adopting the multiannual and annual evaluation programmes and the evaluation reports. 3. In the case of possible deficiencies recommendations for remedial action may be addressed to the Member States concerned. Where serious deficiencies in the carrying out of external border control are identified in an evaluation report adopted by the Commission in accordance with Article 14 of Regulation (EU) No 1053/2013, Articles 19a and 26 of this Regulation shall apply. (28)

OJ L 239, 22.9.2000, p. 73.

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4. The European Parliament and the Council shall be informed at all stages of the evaluation and be transmitted all the relevant documents, in accordance with the rules on classified documents. 5. The European Parliament shall be immediately and fully informed of any proposal to amend or to replace the rules laid down in Regulation (EU) No 1053/2013.

Article 38 Report on the application of Title III The Commission shall submit to the European Parliament and the Council by 13 October 2009a report on the application of Title III. The Commission shall pay particular attention to any difficulties arising from the reintroduction of border control at internal borders. Where appropriate, it shall present proposals aimed at resolving such difficulties.

Article 39 Repeals 1. Articles 2 to 8 of the Convention implementing the Schengen Agreement of 14 June 1985 shall be repealed with effect from 13 October 2006. 2. The following shall be repealed with effect from the date referred to in paragraph 1: (a) the Common Manual, including its annexes; (b) the decisions of the Schengen Executive Committee of 26 April 1994 (SCH/Comex (94) 1, rev 2), 22 December 1994 (SCH/Com-ex (94)17, rev. 4) and 20 December 1995 (SCH/Com-ex (95) 20, rev. 2); (c) Annex 7 to the Common Consular Instructions; (d) Council Regulation (EC) No 790/2001 of 24 April 2001 reserving to the Council implementing powers with regard to certain detailed provisions and practical procedures for carrying out border checks and surveillance(29); (e) Council Decision 2004/581/EC of 29 April 2004 determining the minimum indications to be used on signs at external border crossing points(30); (f) Council Decision 2004/574/EC of 29 April 2004 amending the Common Manual(31); (g) Council Regulation (EC) No 2133/2004 of 13 December 2004 on the requirement for the competent authorities of the Member States to stamp systematically the travel documents of third country nationals when they cross the external borders of the Member States and amending the provisions of the Convention implementing the Schengen agreement and the Common Manual to this end(32). 3. References to the Articles deleted and instruments repealed shall be construed as references to this Regulation.

(29) OJ p. 45). (30) OJ (31) OJ (32) OJ

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L 116, 26.4.2001, p. 5. Regulation amended by Decision 2004/927/EC (OJ L 396, 31.12.2004, L 261, 6.8.2004, p. 119. L 261, 6.8.2004, p. 36. L 369, 16.12.2004, p. 5.

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Annex I

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Article 40 Entry into force This Regulation shall enter into force on 13 October 2006. However, Article 34 shall enter into force on the day after its publication in the Official Journal of the European Union. This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaty establishing the European Community. Title IV (Article 32–40) consists of the final provisions. Article 32 provides the procedure for the revision of annexes III, IV and VIII, and delegates this power to the Commission. The other annexes as well as other amendments of the regulation have to be made by following the regular legislative procedure. Pursuant to Article 33, the power to adopt delegated acts is conferred on the Commission. In certain cases, the Commission is assisted by a committee and the rules of Reg. 182/2011118 apply (Article 33a). Article 34 imposes notification obligations on the Member States with respect to the seven points listed in Article 34(1). The notified information is to be published in the Official Journal, C series or by any other appropriate means119. Article 37 contains a further notification obligation of the Member States, and Article 38 required the Commission to submit a report on the application of Title III by 13 October 2009. With the entry into force of Regulation 1051/2013120 in November 2013, a new evaluation and monitoring mechanism was introduced, giving the Commission a more important role to play (Article 37a). The purpose, scope and functioning of this mechanism is specified in detail in Council Regulation (EU) No. 1053/2013121. Every Member State is evaluated at least every five years with regard to the implementation of Regulation 562/2006. The Commission is now jointly responsible with the Member States for the evaluation and the monitoring, and shall establish annual as well as multiannual evaluation programmes, submit a yearly FRONTEX risk analysis and conduct on-site visits at external or internal borders. The Member States and the Commission may both draft recommendations to remedy any problems and deficiencies identified during the evaluations.

ANNEX I Supporting documents to verify the fulfilment of entry conditions The documentary evidence referred to in Article 5(2) may include the following: (a) for business trips: (i) an invitation from a firm or an authority to attend meetings, conferences or events connected with trade, industry or work; 118 Regulation (EU) 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers, OJ 2011 L 55/13. 119 All notifications can also be found on the website of the Directorate-General for Migration and Home Affairs http://ec.europa.eu/dgs/home-affairs/e-library/documents/categories/notifications/index_en.htm [last accessed 24 February 2015]. 120 OJ 2013 L 295/1. 121 OJ 2013 L 295/27; see also Pascouau, The Schengen Governance Package, p. 9–11.

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(ii) other documents which show the existence of trade relations or relations for work purposes; (iii) entry tickets for fairs and congresses if attending one; (b) for journeys undertaken for the purposes of study or other types of training: (i) a certificate of enrolment at a teaching institute for the purposes of attending vocational or theoretical courses in the framework of basic and further training; (ii) student cards or certificates for the courses attended; (c) for journeys undertaken for the purposes of tourism or for private reasons: (i) supporting documents as regards lodging: – an invitation from the host if staying with one, – a supporting document from the establishment providing lodging or any other appropriate document indicating the accommodation envisaged; (ii) supporting documents as regards the itinerary: confirmation of the booking of an organised trip or any other appropriate document indicating the envisaged travel plans; (iii) supporting documents as regards return: a return or round-trip ticket; (d) for journeys undertaken for political, scientific, cultural, sports or religious events or other reasons: invitations, entry tickets, enrolments or programmes stating wherever possible the name of the host organisation and the length of stay or any other appropriate document indicating the purpose of the visit.

ANNEX II Registration of information […]

ANNEX III Model signs indicating lanes at border crossing points […]

ANNEX IV Affixing stamps […]

ANNEX V PART A Procedures for refusing entry at the border 1. When refusing entry, the competent border guard shall: (a) fill in the standard form for refusing entry, as shown in Part B. The third-country national concerned shall sign the form and shall be given a copy of the signed

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Part B II

form. Where the third-country national refuses to sign, the border guard shall indicate this refusal in the form under the section ‘comments’; (b) affix an entry stamp on the passport, cancelled by a cross in indelible black ink, and write opposite it on the right-hand side, also in indelible ink, the letter(s) corresponding to the reason(s) for refusing entry, the list of which is given on the abovementioned standard form for refusing entry; (c) annul or revoke the visas, as appropriate, in accordance with the conditions laid down in Article 34 of 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); (d) record every refusal of entry in a register or on a list stating the identity and nationality of the third-country national concerned, the references of the document authorising the third-country national to cross the border and the reason for, and date of, refusal of entry; 3. If a third-country national who has been refused entry is brought to the border by a carrier, the authority responsible locally shall: (a) order the carrier to take charge of the third-country national and transport him or her without delay to the third country from which he or she was brought, to the third country which issued the document authorising him or her to cross the border, or to any other third country where he or she is guaranteed admittance, or to find means of onward transportation in accordance with Article 26 of the Schengen Convention and Council Directive 2001/51/EC of 28 June 2001 supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985; (b) pending onward transportation, take appropriate measures, in compliance with national law and having regard to local circumstances, to prevent third-country nationals who have been refused entry from entering illegally; 4. If there are grounds both for refusing entry to a third-country national and arresting him or her, the border guard shall contact the authorities responsible to decide on the action to be taken in accordance with national law. PART B Standard form for refusal of entry at the border

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Part B II Annex VI

Entry and Border Controls

ANNEX VI Specific rules for the various types of border and the various means of transport used for crossing the Member States’ external borders 1. Land borders 1.1. Checks on road traffic 1.1.1. To ensure effective checks on persons, while ensuring the safety and smooth flow of road traffic, movements at border crossing points shall be regulated in an 112

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Part B II

appropriate manner. Where necessary, Member States may conclude bilateral agreements to channel and block traffic. They shall inform the Commission thereof pursuant to Article 37. 1.1.2. At land borders, Member States may, where they deem appropriate and if circumstances allow, install or operate separate lanes at certain border crossing points, in accordance with Article 9. Separate lanes may be dispensed with at any time by the Member States’ competent authorities, in exceptional circumstances and where traffic and infrastructure conditions so require. Member States may cooperate with neighbouring countries with a view to the installation of separate lanes at external border crossing points. 1.1.3. As a general rule, persons travelling in vehicles may remain inside them during checks. However, if circumstances so require, persons may be requested to alight from their vehicles. Thorough checks will be carried out, if local circumstances allow, in areas designated for that purpose. In the interests of staff safety, checks will be carried out, where possible, by two border guards. 1.1.4. Shared border crossing points […] 1.2. Checks on rail traffic 1.2.1. Checks shall be carried out both on train passengers and on railway staff on trains crossing external borders, including those on goods trains or empty trains. Member States may conclude bilateral or multilateral agreements on how to conduct those checks respecting the principles set out in point 1.1.4. Those checks shall be carried out in one of the following ways: – in the first station of arrival or last station of departure on the territory of a Member State, – on board the train, during transit between the last station of departure in a third country and the first station of arrival on the territory of a Member State or vice versa, – in the last station of departure or the first station of arrival on the territory of a third country. 1.2.2. In addition, in order to facilitate rail traffic flows of high-speed passenger trains, the Member States on the itinerary of these trains from third countries may also decide, by common agreement with third countries concerned respecting the principles set out in point 1.1.4., to carry out entry checks on persons on trains from third countries in either one of the following ways: – in the stations in a third country where persons board the train, – in the stations where persons disembark within the territory of the Member States, – on board the train during transit between stations on the territory of a third country and stations on the territory of the Member States, provided that the persons stay on board the train. 1.2.3. With respect to high-speed trains from third countries making several stops in the territory of the Member States, if the rail transport carrier is in a position to board passengers exclusively for the remaining part of the journey within the territory of the Member States, such passengers shall be subject to entry checks either on the train or at the station of destination except where checks have been carried out pursuant to points 1.2.1 or 1.2.2 first indent. Persons who wish to take the train exclusively for the remaining part of the journey within the territory of the Member States shall receive clear notification prior to the train’s departure that they will be subject to entry checks during the journey or at the station of destination. Epiney/Egbuna-Joss

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1.2.4. When travelling in the opposite direction, the persons on board the train shall be subject to exit checks under similar arrangements. 1.2.5. The border guard may order the cavities of carriages to be inspected if necessary with the assistance of the train inspector, to ensure that persons or objects subject to border checks are not concealed in them. 1.2.6. Where there are reasons to believe that persons who have been reported or are suspected of having committed an offence, or third-country nationals intending to enter illegally, are hiding on a train, the border guard, if he or she cannot act in accordance with his national provisions, shall notify the Member States towards or within whose territory the train is moving. 2. Air borders 2.1. Procedures for checks at international airports 2.1.1. The competent authorities of the Member States shall ensure that the airport operator takes the requisite measures to physically separate the flows of passengers on internal flights from the flows of passengers on other flights. Appropriate infrastructures shall be set in place at all international airports to that end. 2.1.2. The place where border checks are carried out shall be determined in accordance with the following procedure: (a) passengers on a flight from a third country who board an internal flight shall be subject to an entry check at the airport of arrival of the flight from a third country. Passengers on an internal flight who board a flight for a third country (transfer passengers) shall be subject to an exit check at the airport of departure of the latter flight; (b) for flights from or to third countries with no transfer passengers and flights making more than one stop-over at the airports of the Member States where there is no change of aircraft: (i) passengers on flights from or to third countries where there is no prior or subsequent transfer within the territory of the Member States shall be subject to an entry check at the airport of entry and an exit check at the airport of exit; (ii) passengers on flights from or to third countries with more than one stopover on the territory of the Member States where there is no change of aircraft (transit passengers), and provided that passengers cannot board the aircraft for the leg situated within the territory of the Member States, shall be subject to an entry check at the airport of arrival and an exit check at the airport of departure; (iii) where an airline may, for flights from third countries with more than one stop-over within the territory of the Member States, board passengers only for the remaining leg within that territory, passengers shall be subject to an exit check at the airport of departure and an entry check at the airport of arrival. Checks on passengers who, during those stop-overs, are already on board the aircraft and have not boarded in the territory of the Member States shall be carried out in accordance with point (b)(ii). The reverse procedure shall apply to that category of flights where the country of destination is a third country. 2.1.3. Border checks will normally not be carried out on the aircraft or at the gate, unless it is justified on the basis of an assessment of the risks related to internal security and illegal immigration. In order to ensure that, at the airports designated as border crossing points, persons are checked in accordance with the rules set out in Articles 6 to 13, Member States shall ensure that the airport authorities take the requisite measures to channel passenger traffic to facilities reserved for checks. 114

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Annex VIII

Part B II

Member States shall ensure that the airport operator takes the necessary measures to prevent unauthorised persons entering and leaving the reserved areas, for example the transit area. Checks will normally not be carried out in the transit area, unless it is justified on the basis of an assessment of the risks related to internal security and illegal immigration; in particular checks in this area may be carried out on persons subject to an airport transit visa in order to check that they are in possession of such a visa. 2.1.4. Where, in cases of force majeure or imminent danger or on the instructions of the authorities, an aircraft on a flight from a third country has to land on a landing ground which is not a border crossing point, that aircraft may continue its flight only after authorisation from the border guards and from customs. The same shall apply where an aircraft on a flight from a third country lands without permission. In any event, Articles 6 to 13 shall apply to checks on persons on those aircraft. 2.2. Procedures for checks in aerodromes […] 2.3. Checks on persons on private flights […] 3. Sea borders […] 4. Inland waterways shipping […]

ANNEX VII Special rules for certain categories of persons 1. Heads of State […] 2. Pilots of aircraft and other crew members […] 3. Seamen […] 4. Holders of diplomatic, official or service passports and members of international organisations […] 5. Cross-border workers […] 6. Minors […] 7. Rescue services, police, fire brigades and border guards […] 8. Offshore workers […]

ANNEX VIII […]

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III. 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) Official Journal L 243, 15.9.2009, p. 1–58 Selected Bibliography: Den Heijer, ‘Whose Rights and Which Rights? The Continuing Story of NonRefoulement under the European Convention on Human Rights’, EJML 10 (2008), p. 277; den Heijer, Europe and Extraterritorial Asylum (Hart, 2012); Fundamental Rights Agency, Fundamental rights: challenges and achievements in 2012, Annual Report 2012; Fundamental Rights Agency, Fundamental rights: challenges and achievements in 2013, Annual Report 2013; Goodwin-Gill/McAdam, The Refugee in International Law, 3rd Edition (OUP, 2007); Groenendijk/Guild, ‘Visa Policy of Member States and the EU towards Turkish Nationals after Soysal’, Economic Development Foundation Publications, No 232 (2010), available at: http://cmr.jur.ru.nl/cmr/docs/Soysal.Report.pdf [last accessed 06 April 2015]; Hathaway, The Rights of Refugees under International Law (CUP, 2005); Jensen, ‘Humanitarian Visas: Option or Obligations?’, CEPS Paper in Liberty and Security No 68 (2014), available at: http://www.ceps.eu/book/ humanitarian-visas-option-or-obligation [last accessed 06 April 2015]; Lauterpacht/Bethlehem, ‘The scope and content of the principle of non-refoulement’, in: Feller/Tu¨rk/Nicholson (eds), Refugee Protection in International Law (CUP, 2003), p. 87; Meloni, Visa Policy within the European Union Structure (Springer, 2006); Meloni, ‘The Community Code on Visas: Harmonization at last?’, EL Rev 34 (2009), p. 671; Moreno Lax, ‘Must EU Borders have Doors for Refugees? On the Compatibility of Schengen Visas and Carriers’ Sanctions with EU Member States’ Obligations to Provide International Protection’, EJML 10 (2008), p. 315; Noll, ‘Seeking Asylum at Embassies: A Right to Entry under International Law?’, IJRL 17 (2005) p. 542; Peers, ‘The Visa Code’, in: Peers/Guild/Tomkin (eds), EU Immigration and Asylum Law (Text and Commentary), 2nd Revised Edition, Volume 1: Visas and Border Controls (Brill Nijhoff, 2012); Peers, Update: amending the EU’s visa list legislation, Statewatch (2012), available at: http://www.statewatch.org/analyses/no-208-visa-lists.pdf [last accessed 06 April 2015].

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 62(2)(a) and (b)(ii) thereof, Having regard to the proposal from the Commission, Acting in accordance with the procedure laid down in Article 251 of the Treaty(1), Whereas: (1) In accordance with Article 61 of the Treaty, the creation of an area in which persons may move freely should be accompanied by measures with respect to external border controls, asylum and immigration. (2) Pursuant to Article 62(2) of the Treaty, measures on the crossing of the external borders of the Member States shall establish rules on visas for intended stays of no more than three months, including the procedures and conditions for issuing visas by Member States. (3) As regards visa policy, the establishment of a ‘common corpus’ of legislation, particularly via the consolidation and development of the acquis (the relevant provisions of the Convention implementing the Schengen Agreement of 14 June 1985(2) and the Common Consular Instructions(3), is one of the fundamental components of ‘fur(1) Opinion of the European Parliament of 2 April 2009 (not yet published in the Official Journal) and Council Decision of 25 June 2009. (2) OJ L 239, 22.9.2000, p. 19. (3) OJ C 326, 22.12.2005, p. 1.

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ther development of the common visa policy as part of a multi-layer system aimed at facilitating legitimate travel and tackling illegal immigration through further harmonisation of national legislation and handling practices at local consular missions’, as defined in the Hague Programme: strengthening freedom, security and justice in the European Union(4). (4) Member States should be present or represented for visa purposes in all third countries whose nationals are subject to visa requirements. Member States lacking their own consulate in a given third country or in a certain part of a given third country should endeavour to conclude representation arrangements in order to avoid a disproportionate effort on the part of visa applicants to have access to consulates. (5) It is necessary to set out rules on the transit through international areas of airports in order to combat illegal immigration. Thus nationals from a common list of third countries should be required to hold airport transit visas. Nevertheless, in urgent cases of mass influx of illegal immigrants, Member States should be allowed to impose such a requirement on nationals of third countries other than those listed in the common list. Member States’ individual decisions should be reviewed on an annual basis. (6) The reception arrangements for applicants should be made with due respect for human dignity. Processing of visa applications should be conducted in a professional and respectful manner and be proportionate to the objectives pursued. (7) Member States should ensure that the quality of the service offered to the public is of a high standard and follows good administrative practices. They should allocate appropriate numbers of trained staff as well as sufficient resources in order to facilitate as much as possible the visa application process. Member States should ensure that a ‘one-stop’ principle is applied to all applicants. (8) Provided that certain conditions are fulfilled, multiple-entry visas should be issued in order to lessen the administrative burden of Member States’ consulates and to facilitate smooth travel for frequent or regular travellers. Applicants known to the consulate for their integrity and reliability should as far as possible benefit from a simplified procedure. (9) Because of the registration of biometric identifiers in the Visa Information System (VIS) as established by Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning Visa Information System (VIS) and the exchange of data between Member States on short-stay visas (VIS Regulation)(5), the appearance of the applicant in person – at least for the first application – should be one of the basic requirements for the application for a visa. (10) In order to facilitate the visa application procedure of any subsequent application, it should be possible to copy fingerprints from the first entry into the VIS within a period of 59 months. Once this period of time has elapsed, the fingerprints should be collected again. (11) Any document, data or biometric identifier received by a Member State in the course of the visa application process shall be considered a consular document under the Vienna Convention on Consular Relations of 24 April 1963 and shall be treated in an appropriate manner. (12) Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data(6) applies to the Member States with regard to the processing of personal data pursuant to this Regulation. (4)

OJ C 53, 3.3.2005, p. 1. OJ L 218, 13.8.2008, p. 60. (6) OJ L 281, 23.11.1995, p. 31. (5)

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(13) In order to facilitate the procedure, several forms of cooperation should be envisaged, such as limited representation, co-location, common application centres, recourse to honorary consuls and cooperation with external service providers, taking into account in particular data protection requirements set out in Directive 95/46/EC. Member States should, in accordance with the conditions laid down in this Regulation, determine the type of organisational structure which they will use in each third country. (14) It is necessary to make provision for situations in which a Member State decides to cooperate with an external service provider for the collection of applications. Such a decision may be taken if, in particular circumstances or for reasons relating to the local situation, cooperation with other Member States in the form of representation, limited representation, co-location or a Common Application Centre proves not to be appropriate for the Member State concerned. Such arrangements should be established in compliance with the general principles for issuing visas and with the data protection requirements set out in Directive 95/46/EC. In addition, the need to avoid visa shopping should be taken into consideration when establishing and implementing such arrangements. (15) Where a Member State has decided to cooperate with an external service provider, it should maintain the possibility for all applicants to lodge applications directly at its diplomatic missions or consular posts. (16) A Member State should cooperate with an external service provider on the basis of a legal instrument which should contain provisions on its exact responsibilities, on direct and total access to its premises, information for applicants, confidentiality and on the circumstances, conditions and procedures for suspending or terminating the cooperation. (17) This Regulation, by allowing Member States to cooperate with external service providers for the collection of applications while establishing the ‘one-stop’ principle for the lodging of applications, creates a derogation from the general rule that an applicant must appear in person at a diplomatic mission or consular post. This is without prejudice to the possibility of calling the applicant for a personal interview. (18) Local Schengen cooperation is crucial for the harmonised application of the common visa policy and for proper assessment of migratory and/or security risks. Given the differences in local circumstances, the operational application of particular legislative provisions should be assessed among Member States’ diplomatic missions and consular posts in individual locations in order to ensure a harmonised application of the legislative provisions to prevent visa shopping and different treatment of visa applicants. (19) Statistical data are an important means of monitoring migratory movements and can serve as an efficient management tool. Therefore, such data should be compiled regularly in a common format. (20) The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(7). (21) In particular, the Commission should be empowered to adopt amendments to the Annexes to this Regulation. Since those measures are of general scope and are designed to amend non-essential elements of this Regulation, inter alia, by supplementing it with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC. (7)

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(22) In order to ensure the harmonised application of this Regulation at operational level, instructions should be drawn up on the practice and procedures to be followed by Member States when processing visa applications. (23) A common Schengen visa Internet site is to be established to improve the visibility and a uniform image of the common visa policy. Such a site will serve as a means to provide the general public with all relevant information in relation to the application for a visa. (24) Appropriate measures should be adopted for the monitoring and evaluation of this Regulation. (25) The VIS Regulation and Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code(8) should be amended in order to take account of the provisions of this Regulation. (26) Bilateral agreements concluded between the Community and third countries aiming at facilitating the processing of applications for visas may derogate from the provisions of this Regulation. (27) When a Member State hosts the Olympic Games and the Paralympic Games, a particular scheme facilitating the issuing of visas to members of the Olympic family should apply. (28) Since the objective of this Regulation, namely the establishment of the procedures and conditions for issuing visas for transit through or intended stays in the territory of the Member States not exceeding three months in any six-month period, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective. (29) This Regulation respects fundamental rights and observes the principles recognised in particular by the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms and by the Charter of Fundamental Rights of the European Union. (30) The conditions governing entry into the territory of the Member States or the issue of visas do not affect the rules currently governing recognition of the validity of travel documents. (31) In accordance with Articles 1 and 2 of the Protocol on the Position of Denmark annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark does not take part in the adoption of this Regulation and is not bound by it, or subject to its application. Given that this Regulation builds on the Schengen acquis under the provisions of Title IV of Part Three of the Treaty establishing the European Community, Denmark shall, in accordance with Article 5 of that Protocol, decide within a period of six months after the date of adoption of this Regulation whether it will implement it in its national law. (32) As regards Iceland and Norway, this Regulation constitutes a development of provisions of the Schengen acquis within the meaning of the Agreement concluded between the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis(9) which fall (8) (9)

OJ L 105, 13.4.2006, p. 1. OJ L 176, 10.7.1999, p. 36.

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within the area referred to in Article 1, point B of Council Decision 1999/437/EC(10) on certain arrangements for the application of that Agreement. (33) An arrangement should be made to allow representatives of Iceland and Norway to be associated with the work of committees assisting the Commission in the exercise of its implementing powers under this Regulation. Such an arrangement has been contemplated in the Exchange of Letters between the Council of the European Union and Iceland and Norway concerning committees which assist the European Commission in the exercise of its executive powers(11), annexed to the abovementioned Agreement. The Commission has submitted to the Council a draft recommendation with a view to negotiating this arrangement. (34) As regards Switzerland, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis(12), which fall within the area referred to in Article 1, point B, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC(13) on the conclusion of that Agreement. (35) As regards Liechtenstein, this Regulation constitutes a development of provisions of the Schengen acquis within the meaning of the Protocol signed between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement concluded between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, which fall within the area referred to in Article 1, point B, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/261/EC(14) on the signing of that Protocol. (36) This Regulation constitutes a development of the provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis(15). The United Kingdom is therefore not taking part in its adoption and is not bound by it or subject to its application. (37) This Regulation constitutes a development of the provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis(16). Ireland is therefore not taking part in the adoption of the Regulation and is not bound by it or subject to its application. (38) This Regulation, with the exception of Article 3, constitutes provisions building on the Schengen acquis or otherwise relating to it within the meaning of Article 3(2) of the 2003 Act of Accession and within the meaning of Article 4(2) of the 2005 Act of Accession, HAVE ADOPTED THIS REGULATION: (10)

OJ OJ (12) OJ (13) OJ (14) OJ (15) OJ (16) OJ (11)

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L 176, 10.7.1999, p. 31. L 176, 10.7.1999, p. 53. L 53, 27.2.2008, p. 52. L 53, 27.2.2008, p. 1. L 83, 26.3.2008, p. 3. L 131, 1.6.2000, p. 43. L 64, 7.3.2002, p. 20.

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TITLE I GENERAL PROVISIONS Article 1 Objective and scope 1. This Regulation establishes the procedures and conditions for issuing visas for transit through or intended stays on the territory of the Member States not exceeding 90 days in any 180-day period. 2. The provisions of this Regulation shall apply to any third-country national who must be in possession of a visa when crossing the external borders of the Member States pursuant to 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(17), without prejudice to: (a) the rights of free movement enjoyed by third-country nationals who are family members of citizens of the Union; (b) the equivalent rights enjoyed by third-country nationals and their family members, who, under agreements between the Community and its Member States, on the one hand, and these third countries, on the other, enjoy rights of free movement equivalent to those of Union citizens and members of their families. 3. This Regulation also lists the third countries whose nationals are required to hold an airport transit visa by way of exception from the principle of free transit laid down in Annex 9 to the Chicago Convention on International Civil Aviation, and establishes the procedures and conditions for issuing visas for the purpose of transit through the international transit areas of Member States’ airports. Content I. II. III. IV.

Drafting history and subject-matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Amendments and proposals for reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Territorial application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Scope. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1. Length of stays and types of visas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2. Third country nationals covered by the Visa Regulation (EC) No 539/ 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 3. Third country nationals covered by the Free Movement Directive 2004/38/EC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 4. Third country nationals covered by Visa Facilitation Agreements . . . . . 10 5. Compliance with data protection and human rights instruments. . . . . . 11 6. List of nationalities subject to airport transit visas. . . . . . . . . . . . . . . . . . . . . . . . 12

I. Drafting history and subject-matter Article 1 establishes the objective and scope of the Regulation. The Regulation 1 establishes the procedures and conditions for issuing visas for transit through or intended stays in the Member States not exceeding 90 days in any 180-day period. The Regulation applies to any third countries national who under the Visa Regulation (EC) No 539/2001 requires a visa to cross the external borders of the Member States. It (17)

OJ L 81, 21.3.2001, p. 1.

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further establishes the list of third countries whose nationals are required to hold airport transit visas and the procedures and conditions for issuing such visas. 2 Cooperation on visa policy between the Member States of the EU started in the 1980s within the frameworks of the ‘Trevi’ Group and the 1985 Schengen Agreement. It continued in the 1990s within the framework of the 1990 Schengen Implementing Convention, to which all Member States acceded by 1996 except for the United Kingdom and Ireland. The Schengen Implementing Convention established, inter alia, the rules on a ‘uniform’ visa, i. e. a visa valid for the territories of all Member States, and on the conditions and procedures for the issuing of such visas by the Member States. The Schengen Executive Committee, set up under the Convention, adopted a number of decisions establishing detailed rules on visa issuing and eventually the Common Consular Instructions which collated such decisions and the relevant Convention articles in one document addressed to the Member States’ national consular authorities. The Common Consular Instructions were published for the first time in 1999. They may be considered the precursor to the Regulation.1 In parallel to these developments, the Treaty of Maastricht, agreed in 1992, introduced Article 100c EC conferring competence to the European Community to adopt the list of countries whose nationals required a visa to cross the external borders of the Member States and a uniform format for visas.2 The procedures and conditions for issuing uniform visas, on the other hand, became the subject of intergovernmental cooperation under the newly established Third Pillar of the European Union. However, no progress was achieved on this front.3 Under the Third Pillar, Joint Action 96/197/ JHA on airport transit visas was adopted listing the nationalities requiring airport transit visas.4 This gave rise to inter-institutional conflict regarding the division of competence for visa policy between the Community and the Third Pillar.5 The Treaty of Amsterdam agreed in 1997 established Community competence for visa, asylum and immigration policies, provided for the incorporation of the Schengen acquis into the EU legal order and accommodated the special positions of the United Kingdom, Ireland and Denmark through protocols attached to the Treaties.6 It introduced four legal bases for visa policy including Article 62(2)(b)(ii) EC on the conditions and procedures for issuing visas which envisaged, after a five year transitional period, i. e. after May 2004, the application of the co-decision procedure to this area. 3 The Regulation was adopted in July 2009 under Article 62(2)(b)(ii) EC, and Article 62(2)(a)(c)EC on standards and procedures for carrying out checks at the external borders, after more than two years of negotiations. It entered into force on 5 April 2010 except for the provisions on rights of appeal for visa refusal decisions which entered into force on 5 April 2011 (see below Article 58). The Regulation was adopted to consolidate and develop the acquis on visa issuing and in response to the European Council’s call ‘for further development of the common visa policy as part of a multilayer system aimed at facilitating legitimate travel and tackling illegal immigration through further harmonisation of national legislation and handling practices at local 1

For an overview of the history of cooperation on visas, see Meloni, Visa Policy, p. 43 et seqq. Regulation (EC) No 2317/95 (OJ 1995 L 234/1) on the visa list was adopted in 1995 and soon replaced by Regulation (EC) No 574/1999 (OJ 1999 L 72/2) following ECJ, Parliament v Council, C-392/95, EU:C:1997:289. Regulation (EC) No 1683/95 (OJ 1995 L 164/1) on the visa format was also adopted in 1995. 3 The proposed Draft External Frontier Convention was never adopted. See Meloni, Visa Policy, p. 75 et seqq. 4 OJ 1996 L 63/8. 5 See ECJ, Commission v Council, C-170/96, EU:C:1998:219. 6 For an overview, see Meloni, Visa Policy, p. 85 et seqq. 2

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consular missions’ (see above Recital 3). The Regulation replaced provisions on visa issuing which were previously scattered in various instruments, some of which of unclear legal nature, such as articles of the Schengen Implementing Convention, the Common Consular Instructions, Schengen Executive Committee Decisions, the Joint Action on Airport Transit Visas and various EC Regulations (see below Article 56). The Regulation clarified the content and legally binding nature of some of the pre-existing rules on visa issuing with a view to achieving further harmonization of the Member States’ practices to ensure the equal treatment of applicants and to avoid visa shopping. It introduced a long awaited system of procedural guarantees for visa applicants in the form of a right of appeal against visa refusal decisions and an accompanying right to be notified of the reasons for visa refusal (see below Article 32(2) and (3)). It also introduced rules on biometric data collection from visa applicants relating to the newly established Visa Identification System (VIS) (see below Article 13).7 Operational instructions have been adopted under Article 51 of the Regulation in the form of two Visa Handbooks respectively on processing visa applications,8 and on visa sections and local Schengen cooperation,9 which are non-legally binding. Notwithstanding the significant simplification brought about by the Regulation, visa issuing remains a complex matter as the Regulation continues to interlock with a number of other legal instruments.10 A number of new proposals are also relevant for visa issuing such as those on the establishment of an exit/entry system and a registered traveller programme.11 To fully comprehend the Regulation it is therefore necessary to consider it within the wider context of the EU external border control system and even wider EU ‘area of freedom, security and justice’, which is fast developing. Furthermore, while the Regulation has provided for further harmonization of the Member States’ visa issuing practices, it appears that there are still variations resulting from the soft law nature or vagueness of some of the rules.

II. Amendments and proposals for reform Since its entry into force the Regulation has been substantially amended twice.12 In 4 April 2014, following an evaluation of its implementation,13 the Commission proposed to recast and amend the Regulation.14 A welcomed political shift is that the Commission

7

See the Visa Identification System (VIS) Regulation (EC) No 767/2008 (OJ 2008 L 218/60). Commission Decision, C(2010) 1620 final, as amended by Commission Implementing Decision, C(2014) 2727 final. 9 Commission Decision, C(2010) 367 final. 10 These include the Visa Regulation (EC) No 539/2001, the Schengen Borders Code Regulation (EC) No 562/2006, the Schengen Information System (SIS) Regulation (EC) No 1987/2006 (OJ 2006 L 381/4), the Visa Information System (VIS) Regulation (EC) 767/2008 (OJ 2008 L 218/60), the Local Border Traffic Regulation (EC) No 1931/2006 (OJ 2006 L 405/1), the Facilitated Travel Document Regulation (EC) No 693/2003 (OJ 2003 L 99/8), the Free Movement Directive 2004/38/EC, the Family Reunification Directive 2003/86/EC and visa facilitation agreements between the EU and third countries, which are listed on the Commission website, available at: http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/ borders-and-visas/visa-policy/index_en.htm [last accessed 06 April 2015]. 11 Commission Proposal, COM(2013) 95; Commission Proposal, COM(2013) 97. 12 By Regulation (EU) No 154/2012 (OJ 2012 L 58/3) with regard to exceptions to airport transit visa requirements, and by Regulation (EU) No 610/2013 (OJ 2013 L 182/1) with regard to the length of stay under a visa. 13 Commission Staff Working Document, SWD(2014) 101 final. 14 Commission Proposal, COM(2014) 164 final. 8

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proposal declares to take ‘into account the increased political emphasis given to the economic impact of visa policy upon the wider European Union economy’.15 The Commission proposal will be considered in relation to the individual articles discussed below. In general, the proposal aims to address the shortcomings of the current rules on visa issuing as experienced by visa applicants relating to the lengthy, costly and cumbersome procedures involved. It does so by improving the rules on visa issuing in various way and by introducing amendments to ensure that the visa facilitations envisaged by the Regulation are actually applied by consulates. In this regard, the proposal introduces the new notion of ‘VIS registered regular traveller’ (i. e. a visa applicant registered in the VIS who has obtained two visas within 12 months prior to his application), who is entitled if certain conditions are fulfilled to a set of visa facilitations (see below Article 14 MN 5; Article 21 MN 4; Article 24 MN 2).16 This proposed amendment has however encountered opposition in the Council, particularly with regard to the ‘automaticity’ of issuing visas to this category.17 The proposal also addresses the issue of insufficient geographical consular coverage, particularly through providing for mandatory representation (see below Article 5 MN 2; Article 17 MN 2).18 A further aim of the proposal is that of facilitating family contacts. Accordingly, the proposal introduces a set of visa facilitations for third country nationals who are ‘close relatives’ of EU citizens but are outside the scope of the Free Movement Directive 2004/ 38/EC (see below Article 9 MN 4; Article 14 MN 4; Article 16 MN 1; Article 23 MN 1).19 These are third country nationals who are close relatives of EU citizens residing in the Member States of which they are nationals, and third country nationals who are close relatives of EU citizens living in a third country and who want to visit together with the EU citizens the Member States of which the EU citizens are nationals. With the exception of the exemption from airport transit visas,20 as a matter of equal treatment of EU citizens, the visa facilitations granted by the proposal to this new category are generally the same as those that the proposal grants to third country national family members of EU citizens covered by the Free Movement Directive 2004/ 38/EC (see below MN 9). However, the new category of beneficiaries is more restrictive including only ‘close relatives’, defined as spouse, children, parents, persons exercising parental authority, grandparents and grandchildren.21 In relation to third country national family members covered by the Free Movement Directive 2004/38/EC, the proposal, which attempts to incorporate the rules in the Directive (see below MN 9),22 extends to cover all family members envisaged by Article 3 of the Directive, that is to say both ‘core’ and ‘extended’, with one exception (see below MN 9).23 This part of the proposal has however encountered criticism and opposition in the Council at working party level on the ground that the definition of ‘close relative’ is too broad and that ‘this category gave rise too often to illegal immigration’.24 15 See Commission Proposal, COM(2014) 164 final, p. 2. See also the new criteria for the determination of the nationalities subject to visas in Article 1 of the Visa Regulation (EC) No 539/2001 as amended by Regulation (EU) No 509/2014 (OJ 2014 L 149/67). See also Commission Communication, COM(2012) 649 final. 16 Draft Articles 2(9), 13(2) and (6), 18(2) and (3) and 21(3) and (4), Commission Proposal, COM(2014) 164 final. 17 Council doc. 6093/15 of 13 February 2015, p. 3. 18 Draft Articles 5(2) and 38(3), Commission Proposal, COM(2014) 164 final. 19 Draft Articles 8(3), 13(3), 14(3)(f) and 20(3), Commission Proposal, COM(2014) 164 final. 20 Draft Article 3(8), Commission Proposal, COM(2014) 164 final. 21 Draft Article 2(7), Commission Proposal, COM(2014) 164 final. 22 Draft Articles 8(4), 13(3), 14(3)(g), and 20(3) and (4), Commission Proposal, COM(2014) 164 final. 23 The exception is in draft Article 20(3), Commission Proposal, COM(2014) 164 final. 24 Council doc. 6093/15 of 13 February 2015, p. 4.

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This type of provisions are however not totally novel. The amended Visa Facilitation Agreements between the EU and Ukraine and Moldova, respectively, and the Visa Facilitation Agreements between the EU and Armenia and Azerbaijan, respectively, contain provisions of this kind.25 The Regulation itself already provides, in Article 24(2), for the issue of multiple-entry visas to ‘family members of EU citizens’ who prove their ‘integrity and reliability’. It is regretful that the proposal is silent in relation to family members of third country nationals who are long-term residents in the EU, particularly in the light of calls from the Tampere European Council for approximating the status of such third country nationals to that of Union citizens.26 Currently the only reference in the Regulation to this category is found in Article 24(2) relating to their entitlement to multiple-entry visas, which the proposal however deletes.27 On the other hand, rules on the matter are found in visa facilitation agreements between the EU and third countries (see below MN 10).28 Moreover, in the context of family reunification, Article 13 of the Family Reunification Directive 2003/86/EC provides that a Member State shall grant to a third country national whose application for family reunification has been successful ‘every facility for obtaining the requisite visas’ (see below Hailbronner/Klarmann, Family Reunification Directive 2003/86/EC, Article 13 MN 1 et seq.). The proposal also aims to further reduce the degree of discretion left to the Member States in visa issuing through further clarifying the content of the rules and their legally binding nature. The proposal has been criticised for missing the opportunity to raise the issue of humanitarian visas, which has acquired prominence particularly as a consequence of the Syrian civil war, and for, conversely, proposing amendments which would make the issuing of such visas by the Member States in the form of LTV visas more difficult (see Article 8 MN 2; Article 17 MN 2; Article 40 MN 1).29 The issue may however be taken up by the European Parliament during negotiations on the proposal.

III. Territorial application The Regulation does not apply to the United Kingdom and Ireland by virtue of the 5 Protocol on the Schengen acquis integrated into the framework of the European Union attached to the Treaties. Any participation of these two Member States, which is very unlikely, would be subject to a unanimous decision of the Council in accordance with Article 4 of said Protocol.30 The Regulation applies to Denmark under international law in accordance with the Protocol on the position of Denmark attached to the Treaties. It also applies to Iceland, Norway, Switzerland and Liechtenstein by virtue of agreements between the EU and these countries on their association with the implementation, application and development of the Schengen acquis (see above Recitals 32, 34 and 35). The Regulation will be applicable to Cyprus, Romania, Bulgaria and Croatia only once the Council so decides unanimously after consultation of the European Parliament in accordance with the Acts of Accession of these Member States to the EU. 25

See for example Articles 4 and 5 EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/49). European Council, Presidency Conclusions, 15 and 16 October 1999, para 18. See also European Council, The Stockholm Programme – An open and secure Europe serving the citizens (OJ 2010 C 115/ 1), para 6.1.4. 27 Draft Article 21, Commission Proposal, COM(2014) 164 final. 28 See for example Articles 4 and 5 EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/49). 29 See Jensen, CEPS Paper in Liberty and Security No 68. See also Fundamental Rights Agency, Annual Report 2013, para 2.4. 30 See ECJ, United Kingdom v Council, C-77/05, EU:C:2007:803. 26

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IV. Scope 1. Length of stays and types of visas 6

The visas covered by the Regulation are visas for transit or intended stays in the Member States not exceeding 90 days in any 180 days period. The period of ‘90 days in any 180 days’ was introduced through an amendment to the Regulation following the ECJ judgment in Bot.31 Prior to the amendment, the length of the permitted stay was defined as ‘not exceeding three months in any six months period’. In Bot, which concerned the short stay of a third country national not subject to visa requirements under Article 20(1) of the Schengen Implementing Convention, the ECJ clarified that wording of this kind effectively meant that a third country national could stay for a period of almost six months by aggregating two successive non-consecutive stays. According to the Commission, this represented a circumvention of the rules on long-stays.32 Currently, competence to regulate entries and stays of more than 90 days remains with the Member States subject to the Long Term Residents’ Directive 2003/109/EC which regulates the legal status of third country nationals who are long-term residents in a Member State. There is currently a proposal to introduce a further type of visa called a ‘touring visa’.33 This would be a visa both for visa-exempt and visa requiring third country nationals under the Visa Regulation (EC) No 539/2001 who intend to stay in two or more Member States for a period lasting longer than 90 days but not exceeding 1 year provided they do not intend to stay in the same Member State for longer than 90 days, in which case they would be required to obtain a national long-stay visa or residence permit. The touring visa is supposed to fill the legal gap affecting those travellers, such as live performing artists, who ‘tour around’ Europe and for whom neither a short-stay uniform visa nor a national long-stay visa provides. The proposal stipulates that many parts of the Regulation would apply to touring visas. The scope of the Regulation could not itself be extended to cover touring visas as the Regulation applies only to third country nationals who require a visa under the Visa Regulation (EC) No 539/2001. The visas covered by the Regulation are ‘uniform’ visas, that is to say visas ‘valid for the entire territory of the Member States’. The Regulation also establishes rules on visas ‘with limited territorial validity’, which are visas ‘valid for the territory of one or more Member States but not all Member States’ and ‘airport transit visas’ which are visas valid for transit through the international transit areas of one or more airports of the Member States’ (see below Article 2).

2. Third country nationals covered by the Visa Regulation (EC) No 539/2001 7

The Regulation applies to third country nationals who under the Visa Regulation (EC) No 539/2001 require a visa to cross the external borders of the Member States. The Visa Regulation (EC) No 539/2001, which is in constant evolution, lists the nationalities requiring visas and those which are visa exempt and provides for mandatory and discretionary exceptions/exemptions. While the Visa Regulation lists Turkey among the countries whose nationals require a visa to cross the external borders of the Member States, some Turkish nationals do not actually require visas to enter some Member 31

ECJ, Bot, C-241/05, EU:C:2006:634; Regulation (EU) No 610/2013 (OJ 2013 L 182/1). See ECJ, Bot, C-241/05, EU:C:2006:634, paras 33 and 42. 33 Commission Proposal, COM(2014) 163 final. 32

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States. In Soysal and Savatli, the ECJ found that, by virtue of the ‘stand still’ clause in the 1970 Additional Protocol to the 1963 Association Agreement between the EEC and Turkey, Turkish nationals residing in Turkey and travelling to a Member State to provide services on behalf of an undertaking established in Turkey are not required to have a visa to enter the territory of that Member State if the Member State in question did not require such a visa at the time of the entry into force, with regard to that Member State, of the Additional Protocol.34 Commission proposals to include a reference to the Soysal and Savatli judgment in the Visa Regulation (EC) No 539/2001 were unsuccessful. It remains the case, as Peers stresses, that EU international treaties have pre-eminence over EU secondary legislation.35 Accordingly, the Regulation is not applicable to Turkish nationals covered by the Soysal and Savatli judgment.36 In the subsequent case of Demirkan, the ECJ found that the freedom to provide services in the Association Agreement between the EEC and Turkey cannot be interpreted as encompassing a freedom to receive services.37

3. Third country nationals covered by the Free Movement Directive 2004/38/EC Article 1(2) states that the Regulation applies without prejudice to the free movement 8 rights of third country nationals who are family members of EU citizens covered by the Free Movement Directive 2004/38/EC, and of EEA and Swiss nationals. Under the Free Movement Directive 2004/38/EC, when visas are applicable to family members of EU citizens covered by the Directive, in accordance with the Visa Regulation (EC) No 539/2001 or, in the case of the United Kingdom and Ireland, national law, Member States shall grant them ‘every facility to obtain the necessary visas’ which ‘shall be issued free of charge as soon as possible and on the basis of an accelerated procedure’.38 Following the ECJ judgment in MRAX, where family members are not in possession of the necessary visas, Member States must give them the opportunity to corroborate their identity at the border.39 Furthermore, following the ECJ judgment in Commission v Spain, a Member State cannot refuse a visa or entry on the sole ground of a Schengen Information System alert without first verifying whether the third country national’s presence constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.40 Family members are also entitled under the Directive to certain procedural guarantees. It is worth noting that apart from the general reference in Article 1(2)(a) and specific 9 references in Article 3(5)(d) on exemption from airport transit visas and in the visa application form contained in Annex 1, the Regulation does not contain provisions reflecting the Member States’ obligations under the Free Movement Directive 2004/38/ EC or clarifying explicitly the relationship between the rules in the Regulation and the rules applicable under the Directive. Thus, for example, the provisions in the Regulation on the visa fee do not include among the categories exempted from the visa fee family members of EU citizens covered by the Directive (see below Article 16 MN 1). The two instruments have been kept separate because of their different legal bases. In practical terms, the difference in legal basis means that the Directive is applicable to the United 34

ECJ, Soysal and Savatli, C-228/06, EU:C:2009:101. Peers, Statewatch (2012). 36 For an analysis of the practical effect of the judgment see Groenendijk/Guild, Economic Development Foundation Publications, No 232 (2010). See also Commission Guidelines, C(2009) 7376 final. 37 ECJ, Demirkan, C-221/11, EU:C:2013:583. 38 Article 5(2). 39 ECJ, MRAX, C-459/99, EU:C:2002:461. 40 ECJ, Commission v Spain, C-503/03, EU:C:2006:74. 35

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Kingdom and Ireland, while the Regulation is not (and the opposite is true with regard to non-EU Schengen states). Conversely, the Visa Handbook, which is not legally binding, contains a whole chapter devoted to the topic of third country nationals covered by the Directive.41 As this situation was seen as a source of confusion for consulates, the Commission proposal on amending and recasting the Regulation (see above MN 4) attempts to include some of the specific rules which are applicable to third country nationals under the Directive (see below Article 9 MN 4; Article 14 MN 4; Article 16 MN 1; Article 23 MN 1).42 This move has however been opposed in the Council at working party level.43 In certain respects, the proposal goes further than simply including the rules in the Directive by providing for detailed rules where the Directive leaves discretion to the Member States. Thus, for example, while under the Directive the Member States are bound to issue visas ‘as soon as possible on the basis of an accelerated procedure’ in the proposal they are obliged to issue visas within 5 days from the date of the lodging of an application (see below Article 23 MN 1).44 The proposal also clarifies that, with the exception of the Member States’ obligation to issue visas within 5 days from the lodging of an application, the visa facilitations provided in the proposal are applicable to all family members envisaged in Article 3 of the Directive (i. e. ‘core’ and ‘extended’).45 In other respects, the proposal goes a step back than the Regulation. This is the case for example in relation to multiple entry visas (see below Article 24 MN 2).46 Furthermore, the proposal does not clarify why it includes only some, as opposed to all, of the obligations resulting from the Free Movement Directive. In this way, it fails to bring about clarity. In particular, it does not incorporate the relevant case law of the ECJ, such as MRAX and Commission v Spain (see above MN 8).47

4. Third country nationals covered by Visa Facilitation Agreements 10

Recital 26 of the Regulation provides that visa facilitation agreements between the EU and third countries may derogate from the provisions of the Regulation. Generally, such agreements, as EU international treaties, may, as a matter of EU law, have pre-eminence over EU secondary legislation, particularly if they have direct effect.48 The EU has concluded, or is in the process of concluding, visa facilitation agreements with a number of third countries in exchange for readmission agreements.49 These agreements provide for visa facilitations for certain categories of EU citizens and citizens of the third countries concerned in relation to documentary requirements, multiple entry visas, visa fees and length of procedures. These categories may include ‘close’ relatives visiting EU citizens legally residing in the third country concerned, or in the Member State of which they are nationals, and ‘close’ relatives visiting nationals of the third country concerned legally residing in the EU, or in the third country concerned. Furthermore, 41 Commission Decision, C(2010) 1620 final, as amended by Commission Implementing Decision, C(2014) 2727 final, Part III. 42 Draft Articles 8(4), 13(3), 14(3)(g), and 20(3) and (4), Commission Proposal, COM(2014) 164 final. 43 Council doc. 6093/15 of 13 February 2015, p. 4. 44 Draft Article 20(3), Commission Proposal, COM(2014) 164 final. 45 The five day time limit, under draft Article 20(3), relates only to ‘core’ family members under the Directive, excluding ‘extended’ family members. 46 Draft Article 21, Commission Proposal, COM(2014) 164 final. 47 ECJ, MRAX, C-459/99, EU:C:2002:461; ECJ, Commission v Spain, C-503/03, EU:C:2006:74. Cfr. Visa Handbook, Commission Decision, C(2010) 1620 final, as amended by Commission Implementing Decision, C(2014) 2727 final, Part III, paras 3.8 and 4. 48 See for example ECJ, Intertanko and Others, C-308/06, EU:C:2008:312, paras 42–43. 49 A list can be found on: http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/ visa-policy/index_en.htm [last accessed 06 April 2015].

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they provide for visa exemption for holders of diplomatic passports and, with regard to the amended Visa Facilitation Agreements between the EU and Ukraine and Moldova respectively, for holders of biometric service passports.50 They exclude from their scope matters such as recognition of travel documents, visa refusal, proof of sufficient means of subsistence, refusal of entry and expulsion matters. These agreements do not apply to the United Kingdom and Ireland, Denmark, Lichtenstein, Switzerland, Iceland and Norway. Bilateral agreements have been concluded between some of these countries and the third countries concerned.51 It seems the case that the United Kingdom and Ireland would not be able to opt into EU visa facilitation agreements directly without firstly opting into the EU internal harmonization measures by virtue of the AETR doctrine.52

5. Compliance with data protection and human rights instruments Recital 12 of the Regulation states that Directive 95/46/EC on the protection of 11 individuals regarding personal data,53 which will soon be replaced by a new data protection regulation,54 applies to the Member States with regard to the processing of personal data pursuant to the Regulation. Article 43(9) underlines that, in cases of cooperation with external service providers, the Member States remain responsible for compliance with data protection rules. Recital 29 states that the Regulation respects fundamental rights and observes the principles recognized in particular by the ECHR and the CFR. It is worth confronting this Recital to Recital 20 of the Schengen Borders Code Regulation (EC) No 562/2006 which adds that the Schengen Borders Code Regulation ‘should be applied in accordance with the Member States’ obligations as regards international protection and nonrefoulement’. This Recital finds effect in Article 3a and Article 13 of the Schengen Borders Code Regulation (see below Article 32 MN 1). The difference between the Recitals of the two Regulations may be taken to reflect the fact that while it is generally accepted by the Member States that the obligation of non-refoulement under Article 33(1) of the Geneva Convention applies in relation to asylum-seekers who have reached their borders, there is no general acceptance that such an obligation can be triggered in relation to visa issuing abroad, which is the very reason why visa requirements have proliferated as interdiction measures. This position finds further reflection in Article 3(2) of the Asylum Procedures Directive 2013/32/EU which states that the Directive ‘shall not apply to requests for diplomatic or territorial asylum submitted to representations of the Member States’ (see below Vedsted-Hansen, Asylum Procedures Directive 2013/32/EU, Article 3 MN 5). This issue, as well as non-refoulement under the ECHR and the CFR, is explored below (see below Article 25 MN 3).

6. List of nationalities subject to airport transit visas The Regulation also covers the list of third countries whose nationals require airport 12 transit visas to transit through the international transit areas of Member States’ airports and the conditions and procedures for issuing such visas. The inclusion of such a list in the Regulation, rather than in the Visa Regulation (EC) No 539/2001, results from the ECJ judgment in Commission v Council on airport transit visas where the ECJ excluded 50 See for example Article 1, Agreement amending the EC-Moldova Visa Facilitation Agreement (OJ 2013 L 168/3). 51 For the list, see the Visa Handbook, Commission Decision, C(2010) 1620 final, as amended by Commission Implementing Decision, C(2014) 2727 final, Part I, para 5. 52 ECJ, Commission v Council, 22/70, EU:C:1971:32. 53 OJ 1995 L 281/31. 54 Commission Proposal, COM(2012) 9, 10, 11.

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the possibility that such a list could be covered by former Article 100c EC (see above Article 1 MN 2).55

Article 2 Definitions For the purpose of this Regulation the following definitions shall apply: 1. ‘third-country national’ means any person who is not a citizen of the Union within the meaning of Article 17(1) of the Treaty; 2. ‘visa’ means an authorisation issued by a Member State with a view to: (a) transit through or an intended stay on the territory of the Member States of a duration of no more than 90 days in any 180-day period; (b) transit through the international transit areas of airports of the Member States; 3. ‘uniform visa’ means a visa valid for the entire territory of the Member States; 4. ‘visa with limited territorial validity’ means a visa valid for the territory of one or more Member States but not all Member States; 5. ‘airport transit visa’ means a visa valid for transit through the international transit areas of one or more airports of the Member States; 6. ‘visa sticker’ means the uniform format for visas as defined by Council Regulation (EC) No 1683/95 of 29 May 1995 laying down a uniform format for visas(18); 7. ‘recognised travel document’ means a travel document recognised by one or more Member States for the purpose of affixing visas; 8. ‘separate sheet for affixing a visa’ means the uniform format for forms for affixing the visa issued by Member States to persons holding travel documents not recognised by the Member State drawing up the form as defined by Council Regulation (EC) No 333/2002 of 18 February 2002 on a uniform format for forms for affixing the visa issued by Member States to persons holding travel documents not recognised by the Member State drawing up the form(19); 9. ‘consulate’ means a Member State’s diplomatic mission or a Member State’s consular post authorised to issue visas and headed by a career consular officer as defined by the Vienna Convention on Consular Relations of 24 April 1963; 10. ‘application’ means an application for a visa; 11. ‘commercial intermediary’ means a private administrative agency, transport company or travel agency (tour operator or retailer).

TITLE II AIRPORT TRANSIT VISA Article 3 Third-country nationals required to hold an airport transit visa 1. Nationals of the third countries listed in Annex IV shall be required to hold an airport transit visa when passing through the international transit areas of airports situated on the territory of the Member States. 55

ECJ, Commission v Council, C-170/96, EU:C:1998:219. OJ L 164, 14.7.1995, p. 1. (19) OJ L 53, 23.2.2002, p. 4. (18)

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2. In urgent cases of mass influx of illegal immigrants, individual Member States may require nationals of third countries other than those referred to in paragraph 1 to hold an airport transit visa when passing through the international transit areas of airports situated on their territory. Member States shall notify the Commission of such decisions before their entry into force and of withdrawals of such an airport transit visa requirement. 3. Within the framework of the Committee referred to in Article 52(1), those notifications shall be reviewed on an annual basis for the purpose of transferring the third country concerned to the list set out in Annex IV. 4. If the third country is not transferred to the list set out in Annex IV, the Member State concerned may maintain, provided that the conditions in paragraph 2 are met, or withdraw the airport transit visa requirement. 5. The following categories of persons shall be exempt from the requirement to hold an airport transit visa provided for in paragraphs 1 and 2: (a) holders of a valid uniform visa, national long-stay visa or residence permit issued by a Member State; (b) third-country nationals holding a valid residence permit issued by a Member State which does not take part in the adoption of this Regulation or by a Member State which does not yet apply the provisions of the Schengen acquis in full, or third-country nationals holding one of the valid residence permits listed in Annex V issued by Andorra, Canada, Japan, San Marino or the United States of America guaranteeing the holder’s unconditional readmission; (c) third-country nationals holding a valid visa for a Member State which does not take part in the adoption of this Regulation, for a Member State which does not yet apply the provisions of the Schengen acquis in full, or for Canada, Japan or the United States of America, when travelling to the issuing country or to any other third country, or when, having used the visa, returning from the issuing country; (d) family members of citizens of the Union as referred to in Article 1(2)(a); (e) holders of diplomatic passports; (f) flight crew members who are nationals of a contracting Party to the Chicago Convention on International Civil Aviation. Content I. Scope and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Procedure and conditions for unilateral imposition of airport transit visas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Exempted categories. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 4

I. Scope and drafting history Article 3(1) establishes an obligation for nationals of third countries listed in Annex 1 IV of the Regulation to hold airport transit visas when passing through the international transit areas of the Member States’ airports. The Annex contains a list of 12 countries including Afghanistan, Bangladesh, Democratic Republic of Congo, Eritrea, Ethiopia, Ghana, Iran, Iraq, Nigeria, Pakistan, Somalia and Sri Lanka. This provision replaced Joint Action 96/197/JHA on Airport Transit Visas which was adopted under the old Third Pillar of the Maastricht Treaty (see above Article 1 MN 2 and 12; below Article 56(2)(c)). The Joint Action did not include Pakistan and Bangladesh which were however included in the Schengen airport transit visa list. As the Joint Action has been repealed by the Regulation, it is no longer applicable to the UK and Ireland. Meloni

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II. Procedure and conditions for unilateral imposition of airport transit visas Article 3(2), (3) and (4) establishes that individual Member States may impose airport transit visas on nationals of third countries other than those in the common list ‘in urgent cases of mass influx of illegal immigrants’. According to Peers, this is prima facie a high threshold, taking also into account that the Member States’ power should be construed narrowly. Moreover national decisions on imposing airport transit visas could be challenged on the basis that such a criterion is not met.56 The Article also establishes the procedure that Member States must follow when they decide to unilaterally introduce airport transit visas, and the possibility of adding the third countries concerned to the common list. Amendments to the common list are to be adopted in accordance with the ‘regulatory procedure with scrutiny’ (see below Article 50). The Regulation does not provide for any conditions for such amendments apart from a general reference to combating illegal immigration in Recital 5. Currently, there are approximately 34 third countries whose nationals are subject to airport transit visas by one or more Member States. 3 In its proposal for amending and recasting the Regulation (see above Article 1 MN 4), the Commission maintains the possibility of Member State unilateral action in the field of airport transit visas. The criterion for such an action is changed to ‘a sudden and substantial influx of irregular immigrants’, which echoes the ‘substantial and sudden increase’ criterion of the suspension mechanism in the Visa Regulation (EC) No 539/2001.57 A Member State planning to introduce airport transit visas is under an obligation to substantiate the sudden and substantial influx of irregular immigrants in its notification to the Commission. The duration of the airport transit visa requirement is not to exceed 12 months (with the possibility of a further 12 month extension) and ‘what is strictly necessary’.58 In the proposal, the procedure whereby the Commission may amend the common airport transit visa list, and the list of residence permits exempting the holder from the airport transit visa requirement (see below Articles 50 and 52 MN 1), changes to the ‘delegated acts’ procedure taking into account changes introduced by Regulation (EU) 182/2011.59 2

III. Exempted categories 4

Article 3(5) stipulates the categories of persons who are exempted from airport transit visas. Article 3(5)(b) and (c), introduced through an amendment to the original Regulation,60 makes provision for airport transit visa exemption for holders of visas or residence permits issued by the United Kingdom and Ireland or by those Member States which are not yet applying the Regulation, namely Cyprus, Romania, Bulgaria and Croatia (see above Article 1 MN 5).

56

Peers, in Peers/Guild/Tomkin (eds), EU Immigration and Asylum Law, p. 251, 255–256. See Article 1(2), Regulation (EU) No 1289/2013 amending Regulation (EC) No 539/2001 (OJ 2013 L 347/74). 58 Draft Article 3(3), Commission Proposal, COM(2014) 164 final. 59 OJ 2011 L 55/13. See draft articles 48 and 49, Commission Proposal, COM(2014) 164 final. 60 Regulation (EU) No 154/2012 (OJ 2012 L 58/3). 57

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The Commission has proposed to add to the exempted categories in the Regulation 5 holders of ‘touring’ visas issued by a Member State (see above Article 1 MN 6), holders of visas for a EEA country, as included in the original version of the Regulation, holders of residence permits or visas issued by the Caribbean parts of the Netherlands and holders of service, official or special passports.61 With regard to third country national family members of EU citizens covered by the 6 Free Movement Directive 2004/38/EC, the proposal clarifies that the exemption covers all categories envisaged in Article 3 of the Directive, that is to say both ‘core’ and ‘extended’ family members (see above Article 1 MN 9).62 The proposal does not extend this particular exemption to third country national family members of EU citizens outside the scope of the Directive, notwithstanding its general objective to introduce visa facilitations for this particular category (see above Article 1 MN 4).

TITLE III PROCEDURES AND CONDITIONS FOR ISSUING VISAS CHAPTER I Authorities taking part in the procedures relating to applications

Article 4 Authorities competent for taking part in the procedures relating to applications 1. Applications shall be examined and decided on by consulates. 2. By way of derogation from paragraph 1, applications may be examined and decided on at the external borders of the Member States by the authorities responsible for checks on persons, in accordance with Articles 35 and 36. 3. In the non-European overseas territories of Member States, applications may be examined and decided on by the authorities designated by the Member State concerned. 4. A Member State may require the involvement of authorities other than the ones designated in paragraphs 1 and 2 in the examination of and decision on applications. 5. A Member State may require to be consulted or informed by another Member State in accordance with Articles 22 and 31. Article 4 establishes the general rule that applications should be examined and 1 decided by consulates.

Article 5 Member State competent for examining and deciding on an application 1. The Member State competent for examining and deciding on an application for a uniform visa shall be: (a) the Member State whose territory constitutes the sole destination of the visit(s); 61 62

Draft Article 3(8), Commission Proposal, COM(2014) 164 final. Draft Article 3(8)(d), Commission Proposal, COM(2014) 164 final.

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(b) if the visit includes more than one destination, the Member State whose territory constitutes the main destination of the visit(s) in terms of the length or purpose of stay; or (c) if no main destination can be determined, the Member State whose external border the applicant intends to cross in order to enter the territory of the Member States. 2. The Member State competent for examining and deciding on an application for a uniform visa for the purpose of transit shall be: (a) in the case of transit through only one Member State, the Member State concerned; or (b) in the case of transit through several Member States, the Member State whose external border the applicant intends to cross to start the transit. 3. The Member State competent for examining and deciding on an application for an airport transit visa shall be: (a) in the case of a single airport transit, the Member State on whose territory the transit airport is situated; or (b) in the case of double or multiple airport transit, the Member State on whose territory the first transit airport is situated. 4. Member States shall cooperate to prevent a situation in which an application cannot be examined and decided on because the Member State that is competent in accordance with paragraphs 1 to 3 is neither present nor represented in the third country where the applicant lodges the application in accordance with Article 6. Content I. Member State competent for examining and deciding on an application and representation arrangements under Article 8. . . . . . . . . . . . . . . . . . . . . . . . . . . II. Proposals for reform. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2

I. Member State competent for examining and deciding on an application and representation arrangements under Article 8 1

Article 5(1), (2) and (3) establishes the Member State competent for examining and deciding on a visa application for stays, transit and airport transit. Article 5(4) provides that the Member States ‘shall cooperate’ to prevent a situation where an application cannot be examined and decided because the competent Member State is neither present nor represented in the country where the application is to be lodged. The classic means of cooperation is representation between Member States. In this context, Article 8(5) provides that Member States lacking their own consulate in a third country ‘shall endeavour’ to conclude representation arrangements with Member States that have consulates in that country. Furthermore, Article 8(6) provides that Member States lacking their own consulate in a particular area or region ‘shall endeavour’ to conclude representation arrangements with Member States who are present in such a region or area when otherwise lodging a visa application would require a disproportionate effort on the part of visa applicants because of large distances or poor transport infrastructures.

II. Proposals for reform 2

The Commission, in its proposal to amend and recast the Regulation (see above Article 1 MN 4), has proposed to amend these rules as they ‘seem too rigid to match 134

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Art. 6

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Part B III

reality’.63 According to the Commission, Articles 5(4) and 8(5) are difficult to enforce because of their ‘soft law’ nature and many Member States are still not present or represented in some third countries or regions. This lack of consular coverage is inconsistent with the requirement, in Article 6, that an applicant must apply for a visa in his place of residence. Therefore, the Commission has proposed that if the Member State competent for examining and deciding on the visa application is neither present nor represented in the country where the application is to be lodged, the applicant is entitled to lodge the application at the consulate of one of the Member States of destination, or, if that is not applicable, at the consulate of the Member State of first entry, or, in all other cases concerned at the consulate of any of the Member States that are present in the country.64 In this context, some Member States have expressed the wish to clarify the issue of responsibility for examining asylum applications in the context of the Dublin III Regulation (EU) No 604/2013 in such cases of visas issued through a mandatory representation.65 The proposal also attempts to address the problem of ‘consular shopping’. It appears 3 that in certain cases visa applicants adapt their travel itinerary (even as a matter of hours) in order to be able to lodge their visa application with the consulate considered the most ‘accessible’ in terms of visa issuing practices and geographical proximity. Accordingly, the Commission has proposed that the Member State of main destination will be assessed according to the length of stay counted in days. Furthermore, as the current rules cause difficulties for persons who have to travel to several Member States in consecutive trips but do not have time to apply for several visas and consulates have been unwilling to take responsibility for issuing multiple-entry visas, the Commission has proposed that the Member State of main destination will also be competent for examining and deciding on an application when several separate visits are to be carried out within a period of two months.66

Article 6 Consular territorial competence 1. An application shall be examined and decided on by the consulate of the competent Member State in whose jurisdiction the applicant legally resides. 2. A consulate of the competent Member State shall examine and decide on an application lodged by a third-country national legally present but not residing in its jurisdiction, if the applicant has provided justification for lodging the application at that consulate. Article 6 establishes the general rule that it is the consulate, of the competent Member 1 State, in the country of residence of the applicant which shall examine and decide on the visa application. This is so as such a consulate is considered to be the best placed to examine any risk of irregular immigration. Article 6 provides for some flexibility by stating that a consulate in a country where the visa applicant is legally present may examine and decide on an application if the applicant provides justification for lodging his application with that consulate. This gives the possibility, for example, to visitors to 63

Commission Staff Working Document, SWD(2014) 101 final, p. 5. See Commission Staff Working Document, SWD(2014) 101 final, p. 5, 30–34, and draft Article 5(2), Commission Proposal, COM(2014) 164 final. 65 Council doc. 12046/14 of 25 July 2014, p. 10. 66 Draft Article 5(1)(b), Commission Proposal, COM(2014) 164 final. 64

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the UK, to apply for a uniform visa there if they want to extend their visit to another or more Member States.

Article 7 Competence to issue visas to third-country nationals legally present within the territory of a Member State Third-country nationals who are legally present in the territory of a Member State and who are required to hold a visa to enter the territory of one or more other Member States shall apply for a visa at the consulate of the Member State that is competent in accordance with Article 5(1) or (2). 1

Article 7 covers the rare case where a third country national is legally present in a Member State which takes part in the Schengen acquis without a document entitling him to free circulation (e. g. a person whose asylum application is being examined). Such a person, if required to hold a visa, shall apply at the consulate of the competent Member State. The Commission has proposed to insert rules covering situations where a third country national in the territory of a Member State has lost or has been stolen his travel document.67 Such rules are included in some visa facilitation agreements between the EU and third countries.68

Article 8 Representation arrangements 1. A Member State may agree to represent another Member State that is competent in accordance with Article 5 for the purpose of examining applications and issuing visas on behalf of that Member State. A Member State may also represent another Member State in a limited manner solely for the collection of applications and the enrolment of biometric identifiers. 2. The consulate of the representing Member State shall, when contemplating refusing a visa, submit the application to the relevant authorities of the represented Member State in order for them to take the final decision on the application within the time limits set out in Article 23(1), (2) or (3). 3. The collection and transmission of files and data to the represented Member State shall be carried out in compliance with the relevant data protection and security rules. 4. A bilateral arrangement shall be established between the representing Member State and the represented Member State containing the following elements: (a) it shall specify the duration of such representation, if only temporary, and procedures for its termination; (b) it may, in particular when the represented Member State has a consulate in the third country concerned, provide for the provision of premises, staff and payments by the represented Member State; (c) it may stipulate that applications from certain categories of third-country nationals are to be transmitted by the representing Member State to the central 67 68

136

Draft Article 7(2) and (3), Commission Proposal, COM(2014) 164 final. See for example Article 8 EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/49).

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Art. 8

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Part B III

authorities of the represented Member State for prior consultation as provided for in Article 22; (d) by way of derogation from paragraph 2, it may authorise the consulate of the representing Member State to refuse to issue a visa after examination of the application. 5. Member States lacking their own consulate in a third country shall endeavour to conclude representation arrangements with Member States that have consulates in that country. 6. With a view to ensuring that a poor transport infrastructure or long distances in a specific region or geographical area does not require a disproportionate effort on the part of applicants to have access to a consulate, Member States lacking their own consulate in that region or area shall endeavour to conclude representation arrangements with Member States that have consulates in that region or area. 7. The represented Member State shall notify the representation arrangements or the termination of such arrangements to the Commission before they enter into force or are terminated. 8. Simultaneously, the consulate of the representing Member State shall inform both the consulates of other Member States and the delegation of the Commission in the jurisdiction concerned about representation arrangements or the termination of such arrangements before they enter into force or are terminated. 9. If the consulate of the representing Member State decides to cooperate with an external service provider in accordance with Article 43, or with accredited commercial intermediaries as provided for in Article 45, such cooperation shall include applications covered by representation arrangements. The central authorities of the represented Member State shall be informed in advance of the terms of such cooperation. Article 8 regulates representation between Member States for the purpose of examin- 1 ing and issuing visas (see also above Article 5). Under Article 8(1), representation may be full, covering the whole visa issuing process, or limited to the collection and the enrolment of biometrics. It appears that the latter type of representation has never been used. On the other hand, according to the Commission, full representation has worked well and is expanding.69

I. Representation and Limited Territorial Validity visas Under Article 8(2), when the representing Member State is envisaging a negative 2 decision on an application it shall transfer the application file to the represented Member State which takes the final decision. Article 8(4)(d) provides that this is so unless, by way of derogation from Article 8(2), the representation agreement between the two Member States authorises the representing Member State to refuse a visa. The general rule is therefore that final decisions on visa refusals are taken by the represented Member State as opposed to the representing Member State. From the point of view of individuals, this is an important provision as it makes it possible for the represented Member State, in cases where the visa applicant does not fulfil the conditions for a uniform visa under Article 32(1), to consider the granting of a Limited Territorial Validity visa instead on ‘humanitarian grounds, for reasons of national interest or because of international obligations’ (see below Article 25(1)(a)(i)). The Commission, in 69

Commission Staff Working Document, SWD(2014) 101 final, p. 31.

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its proposal to amend and recast the Regulation (see Article 1 MN 4), has however proposed to delete this provision on the ground that the requirement renders ‘the system inefficient’ and is ‘inconsistent with a common visa policy’.70 Similarly, the Commission proposal deletes current Article 8(4)(c) on the possibility for the representation arrangement to provide that applications from certain categories of third country nationals are to be transmitted to the represented Member State for prior consultation.71

CHAPTER II Application Article 9 Practical modalities for lodging an application 1. Applications shall be lodged no more than three months before the start of the intended visit. Holders of a multiple-entry visa may lodge the application before the expiry of the visa valid for a period of at least six months. 2. Applicants may be required to obtain an appointment for the lodging of an application. The appointment shall, as a rule, take place within a period of two weeks from the date when the appointment was requested. 3. In justified cases of urgency, the consulate may allow applicants to lodge their applications either without appointment, or an appointment shall be given immediately. 4. Applications may be lodged at the consulate by the applicant or by accredited commercial intermediaries, as provided for in Article 45(1), without prejudice to Article 13, or in accordance with Article 42 or 43. 1

Under Article 9(1) and (4) applications may be lodged at the consulate by the applicant or an accredited commercial intermediary without prejudice to Article 13 (on the collection of biometrics), or they may be lodged in accordance with Article 42 (on honorary consuls) or Article 43 (on external service providers). Applications are to be lodged no more than three months before the start of the intended visit, except for multiple entry visas for which applications can be lodged 6 months in advance. In order to provide for more flexibility, the Commission, in its proposal to amend and recast the Regulation (see above Article 1 MN 4) has proposed to extend the period for lodging an application to ‘six months before and no later than 15 calendar days before the intended visit’, 15 days being the current maximum processing time under Article 23.72

I. The requirement to obtain an appointment 2

As a crowd control measure, Article 9(2) provides that applicants may be required to obtain an appointment for lodging an application which ‘as a rule shall’ be given within two weeks from the day of request. The Commission is currently investigating informally thirteen Member States for violation of this rule.73 ‘In justified cases of urgency’, which is left undefined in the Article, the Member States ‘may’ allow applicants to lodge their applications either without appointment or 70

Commission Staff Working Document, SWD(2014) 101 final, p. 31. Commission Proposal, COM(2014) 164 final. 72 Draft Article 8(1), Commission Proposal, COM(2014) 164 final. 73 Commission Staff Working Document, SWD(2014) 101 final, p. 8. 71

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Art. 10

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an appointment shall be given immediately.74 Some Member States have established fast-track procedures for justified cases of urgencies and certain categories of applicants such as business persons or seafarers.75 The Commission has proposed changes to the formulation of the rules relating to justified cases of urgency to the effect that in such cases the Member States ‘shall’ allow applicants to lodge their application without an appointment or shall give an immediate appointment.76 The requirement to obtain an appointment is not applicable to third country national 3 family members of EU citizens covered by the Free Movement Directive 2004/38/EC as Article 5(2) of the Directive provides that the Member States shall grant them ‘every facility to obtain the necessary visas’ which ‘shall be issued as soon as possible and on the basis of an accelerated procedure’. While Article 9 is silent on this issue, the Commission proposal makes express provision for this, clarifying that both ‘core’ and ‘extended’ family members are covered (see above Article 1 MN 8–9).77 Furthermore, in pursuance to its aim to facilitate family contacts (see above Article 1 4 MN 4), the Commission proposal extends the same treatment to third country nationals who are ‘close relatives’ of EU citizens residing in their Member State of nationality and third country nationals who are ‘close relatives’ of EU citizens residing in a third country and wishing to visit together with their EU citizen relatives the Member State of which their EU citizen relatives are nationals. The same treatment is not extended to third country national family members of third country nationals who are long-term residents of the EU.78 However, in the context of family reunification, Article 13 of the Family Reunification Directive 2003/86/EC provides that as soon as an application for family reunification has been accepted, the Member State concerned shall authorize the entry of the family member. In that regard, it shall grant such persons ‘every facility for obtaining the requisite visas’.

Article 10 General rules for lodging an application 1. Without prejudice to the provisions of Articles 13, 42, 43 and 45, applicants shall appear in person when lodging an application. 2. Consulates may waive the requirement referred to in paragraph 1 when the applicant is known to them for his integrity and reliability. 3. When lodging the application, the applicant shall: (a) present an application form in accordance with Article 11; (b) present a travel document in accordance with Article 12; (c) present a photograph in accordance with the standards set out in Regulation (EC) No 1683/95 or, where the VIS is operational pursuant to Article 48 of the VIS Regulation, in accordance with the standards set out in Article 13 of this Regulation; 74 Some guidance on ‘justified cases of urgency’ is provided in the Visa Handbook, Commission Decision, C(2010) 1620 final, as amended by Commission Implementing Decision, C(2014) 2727 final, Part II para 3.2.1. 75 Visa Handbook, Commission Decision, C(2010) 1620 final, as amended by Commission Implementing Decision, C(2014) 2727 final, Part II, para 3.2.3. 76 Draft Article 8(5), Commission Proposal, COM(2014) 164 final. 77 Draft Article 8(4), Commission Proposal, COM(2014) 164 final. 78 Some visa facilitation agreements provide similar rules as the Regulation regarding the prior appointment requirement. See for example Article 7(3) EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/53).

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(d) allow the collection of his fingerprints in accordance with Article 13, where applicable; (e) pay the visa fee in accordance with Article 16; (f) provide supporting documents in accordance with Article 14 and Annex II; (g) where applicable, produce proof of possession of adequate and valid travel medical insurance in accordance with Article 15. Content I. The requirement to appear in person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. The one-stop principle in Article 40(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Exceptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1

2 3 4

Article 10(3) lists the steps that an applicant is required to follow when lodging an application in terms of presenting an application form, a travel document, a photograph, allowing the collection of his fingerprints, paying the visa fee, providing supporting documents, and producing proof of possession of travel medical insurance.

I. The requirement to appear in person 2

Article 10(1) establishes the general rule that applicants shall appear in person when lodging an application without prejudice to Article 13, on collection of biometrics, Article 42, on honorary consuls, Article 43, on external service providers, and Article 45, on accredited commercial intermediaries. Applicants will always have to appear in persons in places where the Visa Identification System has been rolled out and it is necessary to collect their fingerprints for the first time (see below Article 13(2)). When they apply through an accredited commercial intermediary, visa applicants will not have to appear in person unless it is necessary to collect their fingerprints, which commercial intermediaries are not authorized to do.

II. The one-stop principle in Article 40(4) 3

In cases where a Member State cooperate with an external service provider as per Article 43, the applicant cannot be required to go to the external service provider to hand in his application and supporting documents and then to the consulate to have his fingerprints taken by virtue of the one-stop principle in Article 40(4). The external service provider will have to take the fingerprints. The Commission is currently investigating informally a Member State which had such a two stop-procedure in place.79

III. Exceptions 4

Article 10(2) establishes an exception to the general rule that an applicant must appear in person for applicants who are known to the consulate for their ‘integrity and reliability’. Article 24(2)(b) lists among relevant factors to establish the ‘integrity and reliability’ of visa applicants, the lawful use of previous visas, the economic situation of the applicant and his genuine intention to leave at the expiry of the visa, without any further detail or clarification. The Commission has pointed out that these are not objective criteria to the effect that applicants, in practice, do not know when they are entitled to not appear in person.80 79 80

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Commission Staff Working Document, SWD(2014) 101 final, p. 9. Commission Staff Working Document, SWD(2014) 101 final, p. 10.

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Art. 11–13

Visa Code Regulation (EC) No 810/2009

Part B III

Given that the requirement to appear in person is cumbersome and costly to applicants, that it does not provide any added value in terms of detecting irregular immigrants as increasingly decision-making on visas involves no contact with applicants but it is rather a paper procedure, and that under Article 21(8) there is in any case the possibility to call in applicants for an interview, the Commission has proposed to abandon this general requirement and require applicants to appear in person only when their fingerprints need to be taken.81

Article 11 Application form 1. Each applicant shall submit a completed and signed application form, as set out in Annex I. Persons included in the applicant’s travel document shall submit a separate application form. Minors shall submit an application form signed by a person exercising permanent or temporary parental authority or legal guardianship. 2. Consulates shall make the application form widely available and easily accessible to applicants free of charge. 3. The form shall be available in the following languages: (a) the official language(s) of the Member State for which a visa is requested; (b) the official language(s) of the host country; (c) the official language(s) of the host country and the official language(s) of the Member State for which a visa is requested; or (d) in case of representation, the official language(s) of the representing Member State. In addition to the language(s) referred to in point (a), the form may be made available in another official language of the institutions of the European Union. 4. If the application form is not available in the official language(s) of the host country, a translation of it into that/those language(s) shall be made available separately to applicants. 5. A translation of the application form into the official language(s) of the host country shall be produced under local Schengen cooperation provided for in Article 48. 6. The consulate shall inform applicants of the language(s) which may be used when filling in the application form.

Article 12 Travel document The applicant shall present a valid travel document satisfying the following criteria: (a) its validity shall extend at least three months after the intended date of departure from the territory of the Member States or, in the case of several visits, after the last intended date of departure from the territory of the Member States. However, in a justified case of emergency, this obligation may be waived; (b) it shall contain at least two blank pages; (c) it shall have been issued within the previous 10 years.

81

Draft Article 9, Commission Proposal, COM(2014) 164 final.

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Article 13 Biometric identifiers 1. Member States shall collect biometric identifiers of the applicant comprising a photograph of him and his 10 fingerprints in accordance with the safeguards laid down in the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms, in the Charter of Fundamental Rights of the European Union and in the United Nations Convention on the Rights of the Child. 2. At the time of submission of the first application, the applicant shall be required to appear in person. At that time, the following biometric identifiers of the applicant shall be collected: – a photograph, scanned or taken at the time of application, and – his 10 fingerprints taken flat and collected digitally. 3. Where fingerprints collected from the applicant as part of an earlier application were entered in the VIS for the first time less than 59 months before the date of the new application, they shall be copied to the subsequent application. However, where there is reasonable doubt regarding the identity of the applicant, the consulate shall collect fingerprints within the period specified in the first subparagraph. Furthermore, if at the time when the application is lodged, it cannot be immediately confirmed that the fingerprints were collected within the period specified in the first subparagraph, the applicant may request that they be collected. 4. In accordance with Article 9(5) of the VIS Regulation, the photograph attached to each application shall be entered in the VIS. The applicant shall not be required to appear in person for this purpose. The technical requirements for the photograph shall be in accordance with the international standards as set out in the International Civil Aviation Organization (ICAO) document 9303 Part 1, 6th edition. 5. Fingerprints shall be taken in accordance with ICAO standards and Commission Decision 2006/648/EC of 22 September 2006 laying down the technical specifications on the standards for biometric features related to the development of the Visa Information System(20). 6. The biometric identifiers shall be collected by qualified and duly authorised staff of the authorities competent in accordance with Article 4(1), (2) and (3). Under the supervision of the consulates, the biometric identifiers may also be collected by qualified and duly authorised staff of an honorary consul as referred to in Article 42 or of an external service provider as referred to in Article 43. The Member State(s) concerned shall, where there is any doubt, provide for the possibility of verifying at the consulate fingerprints which have been taken by the external service provider. 7. The following applicants shall be exempt from the requirement to give fingerprints: (a) children under the age of 12; (b) persons for whom fingerprinting is physically impossible. If the fingerprinting of fewer than 10 fingers is possible, the maximum number of fingerprints shall be taken. However, should the impossibility be temporary, the applicant shall be required to give the fingerprints at the following application. The authorities competent in accordance with Article 4(1), (2) and (3) shall be entitled to ask for (20)

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OJ L 267, 27.9.2006, p. 41.

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Art. 11–13

Visa Code Regulation (EC) No 810/2009

Part B III

further clarification of the grounds for the temporary impossibility. Member States shall ensure that appropriate procedures guaranteeing the dignity of the applicant are in place in the event of there being difficulties in enrolling; (c) heads of State or government and members of a national government with accompanying spouses, and the members of their official delegation when they are invited by Member States’ governments or by international organisations for an official purpose; (d) sovereigns and other senior members of a royal family, when they are invited by Member States’ governments or by international organisations for an official purpose. 8. In the cases referred to in paragraph 7, the entry ‘not applicable’ shall be introduced in the VIS in accordance with Article 8(5) of the VIS Regulation. Content I. Exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Biometric identifiers and Articles 7 and 8 of the CFR . . . . . . . . . . . . . . . . . . . . . .

1 2

I. Exemptions It is worth noting that third country national family members of EU citizens covered 1 by the Free Movement Directive 2004/38/EC are not included among the categories exempted from the requirement to have their fingerprints collected and stored.

II. Biometric identifiers and Articles 7 and 8 of the CFR Biometric identifiers must be collected, stored and used in accordance with the 2 ECHR, the CFR and the UN Convention on the Rights of the Child. Detailed rules on the use of the Visa Identification System by visa authorities are contained in the Visa Information System (VIS) Regulation (EC) No 767/2008 which also establishes the rights and remedies available to individuals.82 While the legality of both the Regulation, in relation to the collection of the biometrics of visa applicants, and the VIS Regulation (EC) No 767/2008, in relation to the storing and use of such biometrics, has not been challenged, there have been challenges, under Articles 7 and 8 of the CFR, on respect for private and family life and on protection of personal data, to other EU measures providing for the collection and storing of personal data which may be relevant in this context. In the case of Schwarz, the German Administrative Court, Gelsenkirchen, made a preliminary reference to the ECJ concerning the validity of the EU passports Regulation (EC) No 2252/ 2004 under Articles 7 and 8 of the CFR on the basis that the Regulation obliges individuals applying for a passport to provide fingerprints which are stored in that passport. The ECJ held that although the taking and storing of fingerprints in passports constitutes an infringement of the rights to respect for private life and the protection of personal data, those measures are justified by the aim of protecting against any fraudulent use of passports with a view to pursuing the general interest objective of preventing illegal entry into the EU. The Court found that there was no evidence suggesting that the measures in question did not respect the essence of the fundamental rights at issue, and that the measures were appropriate and did not go beyond what was 82

OJ 2008 L 218/60, Chapters II and VI.

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necessary to achieve their general objective. The Court however noted that the EU passports Regulation (EC) No 2252/2004 explicitly limited the use of fingerprints to verify the authenticity of a passport and the identity of its holder. It also did not provide for the storage of fingerprints except within the passport itself. This also meant that it could not be interpreted as providing a legal basis for the centralised storage of data collected or for the use of such data for purposes other than the prevention of illegal entry in the EU.83 The scope of the Visa Information System, on the other hand, is broader as data are stored centrally and law enforcement authorities have access to it.84 Following the ECJ judgment in Digital Rights Ireland and Seitlinger and Others on the validity of the Data Retention Directive,85 it is clear that the Visa Information System, as an instrument which envisages ‘mass data collection, storage of the data of a very large number of unsuspected persons and access and use of such data by law enforcement authorities’, is subject to the requirement of a high level of protection of personal data.86 In its judgment, the Court has clarified that these kind of measures will be assessed strictly with regard to their proportionality and necessity and their legality will require the existence of adequate safeguards.87

Article 14 Supporting documents 1. When applying for a uniform visa, the applicant shall present: (a) documents indicating the purpose of the journey; (b) documents in relation to accommodation, or proof of sufficient means to cover his accommodation; (c) documents indicating that the applicant possesses sufficient means of subsistence both for the duration of the intended stay and for the return to his country of origin or residence, or for the transit to a third country into which he is certain to be admitted, or that he is in a position to acquire such means lawfully, in accordance with Article 5(1)(c) and (3) of the Schengen Borders Code; (d) information enabling an assessment of the applicant’s intention to leave the territory of the Member States before the expiry of the visa applied for. 2. When applying for an airport transit visa, the applicant shall present: (a) documents in relation to the onward journey to the final destination after the intended airport transit; (b) information enabling an assessment of the applicant’s intention not to enter the territory of the Member States. 3. A non-exhaustive list of supporting documents which the consulate may request from the applicant in order to verify the fulfilment of the conditions listed in paragraphs 1 and 2 is set out in Annex II. 83 ECJ, Schwarz, C-291/12, EU:C:2013:670. See also ECJ, Willems and Others, C-446/12, C-447/12, C448/12 and C-449/12, pending, on whether the EU Passports Regulation (EC) No 2252/2004 (OJ 2004 L 385/1), should be interpreted as requiring the Member States to give a statutory guarantee that the biometric data collected and stored pursuant to that Regulation may not be collected, processed and used for any purposes other than the issuing of passports. 84 See Council Decision 2008/633/JHA (OJ 2008 L 218/129) and Council Decision 2013/392/EU (OJ 2013 L 198/45). 85 Directive 2006/24/EC (OJ 2006 L 105/54). 86 Council doc. 9009/14 of 5 May 2014, para 20, p. 8. 87 ECJ, Digital Rights Ireland and Seitlinger and Others, C-293/12, EU:C:2014:238.

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4. Member States may require applicants to present a proof of sponsorship and/or private accommodation by completing a form drawn up by each Member State. That form shall indicate in particular: (a) whether its purpose is proof of sponsorship and/or of accommodation; (b) whether the host is an individual, a company or an organisation; (c) the host’s identity and contact details; (d) the invited applicant(s); (e) the address of the accommodation; (f) the length and purpose of the stay; (g) possible family ties with the host. In addition to the Member State’s official language(s), the form shall be drawn up in at least one other official language of the institutions of the European Union. The form shall provide the person signing it with the information required pursuant to Article 37(1) of the VIS Regulation. A specimen of the form shall be notified to the Commission. 5. Within local Schengen cooperation the need to complete and harmonise the lists of supporting documents shall be assessed in each jurisdiction in order to take account of local circumstances. 6. Consulates may waive one or more of the requirements of paragraph 1 in the case of an applicant known to them for his integrity and reliability, in particular the lawful use of previous visas, if there is no doubt that he will fulfil the requirements of Article 5(1) of the Schengen Borders Code at the time of the crossing of the external borders of the Member States. Content I. II. III. IV.

Harmonization of supporting documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Proof of sponsorship and/or private accommodation. . . . . . . . . . . . . . . . . . . . . . . Discretionary exemptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Free Movement Directive 2004/38/EC and compulsory exemptions

1 2 3 4

I. Harmonization of supporting documents Article 14(1) and (2) provides that an applicant for a uniform visa shall present 1 documents relating to the purpose of his journey,88 accommodation, sufficient means of subsistence and intention to leave the territory of the Member States before the expiry of the visa applied for. There is no formal substantive harmonization as to which supporting documents a visa applicant must present. This position has been justified in terms of the difficulties in drawing up detailed rules in a situation where there is great diversity of individual circumstances and local conditions worldwide. Lack of harmonization does however cause unequal treatment of applicants and visa shopping. The Regulation has nevertheless improved the pre-existing situation in that Article 14(3) envisages a nonexhaustive list of supporting documents which may be required by consulates. This list is contained in Annex II to the Regulation. The Visa Handbook also provides for detailed guidelines.89 It was expected that these guidelines would eventually be replaced by harmonized lists corresponding to local circumstances as a result of Local Schengen 88 Visa facilitations agreements may contain provisions on this matter. See, for example, Article 4 EUAzerbaijan Visa Facilitation Agreement (OJ 2014 L 128/53). 89 Commission Decision, C(2010) 1620 final, as amended by Commission Implementing Decision, C(2014) 2727 final, Part II, para 6.

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Cooperation as envisaged by Article 14(5). However, progress on this front has been limited. The Commission reports among the reasons for lack of progress ‘reluctance on the part of Member States at local level, seemingly unaware of the legal obligation to carry out this assessment’ and ‘lack of awareness by consulates of certain Member States regarding application of a common visa policy’.90 Under the Commission proposal for amending and recasting the Regulation (see above Article 1 MN 4), the list of supporting documents in Annex II becomes exhaustive. Furthermore, under the proposal, the Commission is to establish the list of supporting documents to be used in each jurisdiction in order to take account of local circumstances by means of implementing acts, adopted under the ‘examination procedure’ (see below Articles 50–52 MN 1).91

II. Proof of sponsorship and/or private accommodation 2

Under Article 14(4), the Member States may also require applicants to present proof of sponsorship and/or private accommodation by completing a form which must meet a number of minimum requirements. Practices among the Member States vary widely in this respect, and it appears that many Member States have used the forms explicitly to impose the financial risks of an extended stay on the signee of the form. Also, while the information provided in this form is inserted in the Visa Information System, many Member States do not inform the signee of this as required by Article 37 of the Visa Information System (VIS) Regulation (EC) No 767/2008.92

III. Discretionary exemptions 3

Consulates have the power to waive some of the requirements on supporting documents in relation to applicants known to them for their ‘integrity and reliability’. However, as already mentioned in the context of Article 10(2), the Commission claims that the subjectivity of this notion has precluded its practical application by consulates. The issue is exacerbated by heavy reliance on outsourcing, as external service providers (or commercial intermediaries) are not entitled to assess the content of applications under Article 43(4). The Commission proposal introduces the possibility of providing exemptions in the case of applicants attending major international events in the territory of the Member States particularly important due to their tourism and/or cultural impact.93

IV. The Free Movement Directive 2004/38/EC and compulsory exemptions 4

Consistently with the general approach of the Regulation, Article 14 is silent on the position of third country nationals who are covered by the Free Movement Directive 2004/38/EC (see above Article 1 MN 9). The Visa Handbook clarifies that they may only be required to present documents establishing that they are beneficiaries of the 90 Commission Staff Working Document, SWD(2014) 101 final, p. 12–13. There have been only six Commission implementing decisions covering 16 instances of Local Schengen Cooperation (published on: http://ec.europa.eu/dgs/home-affairs/e-library/documents/policies/borders-and-visas/visa-policy/index_en.htm [last accessed 06 April 2015]) and some work is in progress in relation to other 30 instances of Local Schengen Cooperation. 91 Draft Article 51(2), Commission Proposal, COM(2014) 164 final. 92 OJ 2008 L 218/60. Commission Staff Working Document, SWD(2014) 101 final, p. 14. 93 Draft Article 13(10) Commission Proposal, COM(2014) 164 final.

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Directive.94 The Commission proposal, on the other hand, contains express provisions in this regard (see above Article 1 MN 9). Moreover, as explained in relation to Article 9, the proposal extends the same visa facilitations to third country nationals ‘close relatives’ of EU citizens residing in their Member State of nationality, and of EU citizens residing in a third country when they wish to visit together with their EU citizen relatives the Member State of which their EU citizen relatives are nationals. The same treatment is not extended to family members of third country nationals who are longterm residents of the EU.95 Visa facilitation agreements between the EU and third countries may however be relevant in this context.96 Article 13 of the Family Reunification Directive 2003/86/EC may also be relevant in certain circumstances (see above Article 1 MN 4 and Article 9 MN 4). In pursuance of its objective of introducing procedural facilitations for regular/ 5 frequent travellers, the Commission proposal (see above Article 1 MN 4) introduces the notion of ‘VIS registered regular traveller’ (i. e. a visa applicant registered in the VIS who has obtained two visas within 12 months prior to his application), and provides that VIS registered regular travellers, who have lawfully used the two previously obtained visas, will not be required to provide supporting documents in relation to accommodation, sufficient means of subsistence and intention to leave.97 This proposed amendment has however been opposed in the Council because of the ‘automaticity’ in visa issuing which it implies.98

Article 15 Travel medical insurance 1. Applicants for a uniform visa for one or two entries shall prove that they are in possession of adequate and valid travel medical insurance to cover any expenses which might arise in connection with repatriation for medical reasons, urgent medical attention and/or emergency hospital treatment or death, during their stay(s) on the territory of the Member States. 2. Applicants for a uniform visa for more than two entries (multiple entries) shall prove that they are in possession of adequate and valid travel medical insurance covering the period of their first intended visit. In addition, such applicants shall sign the statement, set out in the application form, declaring that they are aware of the need to be in possession of travel medical insurance for subsequent stays. 3. The insurance shall be valid throughout the territory of the Member States and cover the entire period of the person’s intended stay or transit. The minimum coverage shall be EUR 30 000. When a visa with limited territorial validity covering the territory of more than one Member State is issued, the insurance cover shall be valid at least in the Member States concerned. 4. Applicants shall, in principle, take out insurance in their country of residence. Where this is not possible, they shall seek to obtain insurance in any other country. 94 Commission Decision, C(2010) 1620 final, as amended by Commission Implementing Decision, C(2014) 2727 final, Part III, para 3.6. 95 Draft Article 13(3) Commission Proposal, COM(2014) 164 final. 96 See for example Article 4 EU-Azerbaijan Visa Facilitation Agreement, on documentary evidence regarding the purpose of the journey (OJ 2014 L 128/49). 97 Draft Article 13(2) Commission Proposal, COM(2014) 164 final. 98 Council doc. 6093/15 of 13 February 2015, p. 3.

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When another person takes out insurance in the name of the applicant, the conditions set out in paragraph 3 shall apply. 5. When assessing whether the insurance cover is adequate, consulates shall ascertain whether claims against the insurance company would be recoverable in a Member State. 6. The insurance requirement may be considered to have been met where it is established that an adequate level of insurance may be presumed in the light of the applicant’s professional situation. The exemption from presenting proof of travel medical insurance may concern particular professional groups, such as seafarers, who are already covered by travel medical insurance as a result of their professional activities. 7. Holders of diplomatic passports shall be exempt from the requirement to hold travel medical insurance. 1

On the initiative of Greece, the requirement of travel medical insurance was introduced for visa applicants in October 2004. The Commission is now proposing to abolish this requirement both as it is considered disproportionate and as it is not an entry condition under the Schengen Borders Code Regulation (EC) No 562/2006, and thus it is not verified at the border to the effect that a visa holder may cancel the travel medical insurance once the visa is obtained.99 The Council, at working party level, has however expressed opposition to the deletion ‘because of large numbers of medical bills left unpaid by third country nationals in the Member States’.100

Article 16 Visa fee 1. Applicants shall pay a visa fee of EUR 60. 2. Children from the age of six years and below the age of 12 years shall pay a visa fee of EUR 35. 3. The visa fee shall be revised regularly in order to reflect the administrative costs. 4. The visa fee shall be waived for applicants belonging to one of the following categories: (a) children under six years; (b) school pupils, students, postgraduate students and accompanying teachers who undertake stays for the purpose of study or educational training; (c) researchers from third countries travelling for the purpose of carrying out scientific research as defined in Recommendation No 2005/761/EC of the European Parliament and of the Council of 28 September 2005 to facilitate the issue by the Member States of uniform short-stay visas for researchers from third countries travelling within the Community for the purpose of carrying out scientific research(21); (d) representatives of non-profit organisations aged 25 years or less participating in seminars, conferences, sports, cultural or educational events organised by nonprofit organisations. 5. The visa fee may be waived for: (a) children from the age of six years and below the age of 12 years; 99

Commission Staff Working Document, SWD(2014) 101 final, p. 15. Council doc. 6093/15 of 13 February 2015, p. 3. (21) OJ L 289, 3.11.2005, p. 23. 100

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Art. 17

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(b) holders of diplomatic and service passports; (c) participants aged 25 years or less in seminars, conferences, sports, cultural or educational events, organised by non-profit organisations. Within local Schengen cooperation, Members States shall aim to harmonise the application of these exemptions. 6. In individual cases, the amount of the visa fee to be charged may be waived or reduced when to do so serves to promote cultural or sporting interests as well as interests in the field of foreign policy, development policy and other areas of vital public interest or for humanitarian reasons. 7. The visa fee shall be charged in euro, in the national currency of the third country or in the currency usually used in the third country where the application is lodged, and shall not be refundable except in the cases referred to in Articles 18(2) and 19(3). When charged in a currency other than euro, the amount of the visa fee charged in that currency shall be determined and regularly reviewed in application of the euro foreign exchange reference rate set by the European Central Bank. The amount charged may be rounded up and consulates shall ensure under local Schengen cooperation that they charge similar fees. 8. The applicant shall be given a receipt for the visa fee paid. Article 15(4) and (5) provides for the categories which must and which may be 1 exempted from the visa fee. Furthermore, Article 15(6) provides for the possibility of individual exemptions or reductions on, inter alia, humanitarian grounds. The visa fee is not applicable to third country national family members of EU citizens who are covered by the Free Movement Directive 2004/38/EC (see above Article 1 MN 9). Visa facilitation agreements also provide for a reduced visa fee, which is to be waived for certain categories of persons (see above Article 1 MN 10).101 The Commission proposal on amending and recasting the Regulation extends the categories exempted from the visa fee to include minors under the age of 18, holders of diplomatic and service passports and ‘close relatives’ of EU citizens outside the scope of the Free Movement Directive 2004/38/EC (see above Article 1 MN 4).102 This has found some opposition in the Council.103

Article 17 Service fee 1. An additional service fee may be charged by an external service provider referred to in Article 43. The service fee shall be proportionate to the costs incurred by the external service provider while performing one or more of the tasks referred to in Article 43(6). 2. The service fee shall be specified in the legal instrument referred to in Article 43(2). 3. Within the framework of local Schengen cooperation, Member States shall ensure that the service fee charged to an applicant duly reflects the services offered by the external service provider and is adapted to local circumstances. Furthermore, they shall aim to harmonise the service fee applied. 101

See for example Article 6 EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/53). Draft Article 14(3), Commission Proposal, COM(2014) 164 final. 103 Council doc. 6093/15 of 13 February 2015, p. 3. 102

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4. The service fee shall not exceed half of the amount of the visa fee set out in Article 16(1), irrespective of the possible reductions in or exemptions from the visa fee as provided for in Article 16(2), (4), (5) and (6). 5. The Member State(s) concerned shall maintain the possibility for all applicants to lodge their applications directly at its/their consulates.

I. The possibility to lodge applications at consulates in cases of cooperation with external service providers and proposals for reform Article 17(5) contains an obligation for the Member States to maintain the possibility for all applicants to lodge their applications directly at their consulates when they cooperate with an external service provider for the purpose of collecting applications and biometrics in accordance with Article 43. Although Article 40(3) provides that cooperation with an external service provider is to be a ‘last resort’ measure for a Member State where cooperation with other Member States proves not to be appropriate, it appears that in practice cooperation with external service providers is widespread and the Member States’ preferred option. In this context, there have been numerous complaints to the Commission about the Member States’ violation of Article 17(5).104 2 Under the Commission proposal for amending and recasting the Regulation (see above Article 1 MN 4), cooperation with external service providers is no longer a ‘last resort’ measure but becomes one of the possible organizational options.105 The general obligation to maintain the possibility for applicants to lodge their applications directly at the Member States’ consulates is deleted.106 Although the Commission proposal is silent on the issue, the obligation is to be maintained, as a matter of EU law, in relation to third country national family members of EU citizens covered by the Free Movement Directive 2004/38/EC (see above Article 1 MN 8). This proposed amendment has been criticized on the ground that it makes it difficult for individuals who may be entitled to an LTV visa to have their applications considered by consulates.107 Under Article 43(6)(c), the role of external service providers is limited to ‘collecting data and applications (including collection of biometric identifiers) and transmitting the application to consulates’. Article 43(4) clearly provides that it is only the consulates which are entitled to examine and decide on applications. These provisions notwithstanding, it appears that external service providers do reject incomplete visa applications.108 The effect of such a course of action is to preclude incomplete visa applications from reaching and being considered by consulates, unless there is the possibility to lodge applications directly with the consulates. Under Article 19(4) consulates have the power to consider admissible ‘on humanitarian grounds or for reasons of national interests’ visa applications which do not meet the admissibility requirements in Article 19(1). Under Article 25(1)(a)(i) a Member State shall issue, exceptionally, LTV visas to visa applicants who do not fulfil the entry conditions in Article 5(1)(a), (c), (d) and (e) of the Schengen Borders Code Regulation (EC) No 562/2006 when it ‘considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations’. 1

104

Commission Staff Working Document, SWD(2014) 101 final, p. 34. Draft Article 38(3), Commission Proposal, COM(2014) 164 final. 106 Draft Article 15, Commission Proposal, COM(2014) 164 final. 107 See Jensen, CEPS Paper in Liberty and Security No 68, particularly p. 26. 108 See, for example, Commission Staff Working Document, SWD(2014) 101 final, p. 34. 105

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Art. 19

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CHAPTER III Examination of and decision on an application Article 18 Verification of consular competence 1. When an application has been lodged, the consulate shall verify whether it is competent to examine and decide on it in accordance with the provisions of Articles 5 and 6. 2. If the consulate is not competent, it shall, without delay, return the application form and any documents submitted by the applicant, reimburse the visa fee, and indicate which consulate is competent.

Article 19 Admissibility 1. The competent consulate shall verify whether: the application has been lodged within the period referred to in Article 9(1), the application contains the items referred to in Article 10(3)(a) to (c), the biometric data of the applicant have been collected, and the visa fee has been collected. 2. Where the competent consulate finds that the conditions referred to in paragraph 1 have been fulfilled, the application shall be admissible and the consulate shall: – follow the procedures described in Article 8 of the VIS Regulation, and – further examine the application. Data shall be entered in the VIS only by duly authorised consular staff in accordance with Articles 6(1), 7, 9(5) and 9(6) of the VIS Regulation. 3. Where the competent consulate finds that the conditions referred to in paragraph 1 have not been fulfilled, the application shall be inadmissible and the consulate shall without delay: – return the application form and any documents submitted by the applicant, – destroy the collected biometric data, – reimburse the visa fee, and – not examine the application. 4. By way of derogation, an application that does not meet the requirements set out in paragraph 1 may be considered admissible on humanitarian grounds or for reasons of national interest. – – – –

Content I. The notion of admissibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. The right of appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Derogations and humanitarian visas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3

I. The notion of admissibility Article 19(1) provides the basic elements for a visa application to be admitted for 1 examination. These basic elements reflect the general rules for lodging an application in Meloni

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Article 10, except that Article 19(1) does not include among the requirements for admissibility presentation of supporting documents and travel medical insurance. The notion of admissibility of an application was introduced to distinguish between rejections of incomplete applications, which are not supposed to be recorded in the VIS, and formal refusals, which are recorded in the VIS. However, there seems to be confusion on how the notion is to be applied in practice. Some consulates treat applications lacking supporting documents as incomplete/inadmissible while others count them as formal refusals and record them in the VIS. In this context, it was suggested to include presentation of supporting documents among the admissibility criteria, but there is in most cases no harmonization between consulates of what supporting documents an applicant must submit.109

II. The right of appeal 2

The right of appeal and the right to be notified of the reasons for visa refusal decisions envisaged by Article 32(2) and (3) do not expressly apply to inadmissible applications. The Commission has consistently held that the possibility of appeal in these cases would bring no added value as decisions have no legal effects or impact on future applications. In its original proposal for this Regulation, the Commission excluded the right of appeal expressly for inadmissible applications. However, this position has been criticized and has caused some problems for some Member States.110 As the Standing Committee of experts on international immigration, refugee and criminal law observes, ‘The reasons for declaring an application non-admissible may touch on important material issues. If a person is for an excusable reason not able to produce the additional information or documentation…or if the request for such information or documentation is unreasonable or arbitrary, this person may never be able to repair the deficiency of his visa application if he cannot invoke the impartial opinion of an independent judge’.111

III. Derogations and humanitarian visas 3

Article 19(4) establishes, by way of derogation, that an application that does not meet the general admissibility requirements ‘may’ still be considered admissible ‘on humanitarian grounds or for reasons of national interest’. This provision is linked to Article 25(1)(a)(i) which provides that LTV visas ‘shall’ be issued, ‘exceptionally’, to applicants who do not fulfil the entry conditions in the Schengen Borders Code Regulation (EC) No 562/2006, and hence the conditions for a uniform visas in Article 32(1)(a), when the Member State concerned ‘considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations’. Similar provisions are contained in Article 5(4)(c) of the Schengen Borders Code Regulation (EC) No 562/2006 which states that third country nationals who do not fulfil the entry conditions may be authorized by a Member State to enter its territory on humanitarian grounds, on grounds of national interest or because of international obligations. Jensen describes Article 19(4) as a ‘filter’ for visa applications to be processed under Article 25(1).112 Although Articles 19(4) and 25(1) appear to be linked, there are inconsis109

Commission Staff Working Document, SWD(2014) 101 final, p. 18. For an overview see Meloni, EL Rev 35 (2009), p. 671, 692. 111 Standing Committee of experts on international migration, refugee and criminal law, ‘Note on the draft proposal for a Regulation establishing a Community Code on Visas’, 8 February 2007, para b.1. 112 Jensen, CEPS Paper in Liberty and Security No 68, p. 18. 110

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Art. 21

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tencies in the wording of the two provisions. Article 19(4) provides only for the possibility of treating an inadmissible application as admissible while Article 25(1), through the use of the word ‘shall’ and in the light of the ECJ judgment in Koushkaki,113 seems to create an obligation to issue LTV visas (see below Article 32 MN 3), albeit ‘exceptionally’ and when ‘the Member State concerned considers it necessary’ on the above mentioned grounds. Furthermore, the grounds for treating a prima facie inadmissible application as admissible and the grounds for issuing LTV visas also differ in that Article 19(4), unlike Article 25(1), does not include the Member States’ ‘international obligations’. It has therefore been recommended to ensure consistency between the wordings of the two articles and create a clearer link between them.114 As Jensen points out, ‘it is unclear whether there is a mandatory assessment of 4 protection needs and human rights issues under Articles 19(4) and 25 (1) when admissibility requirements and entry conditions are not met’.115 The answer depends ultimately on whether the EU and Member States’ refugee and human rights obligations so require (see Article 25 MN 3).

Article 20 Stamp indicating that an application is admissible 1. When an application is admissible, the competent consulate shall stamp the applicant’s travel document. The stamp shall be as set out in the model in Annex III and shall be affixed in accordance with the provisions of that Annex. 2. Diplomatic, service/official and special passports shall not be stamped. 3. The provisions of this Article shall apply to the consulates of the Member States until the date when the VIS becomes fully operational in all regions, in accordance with Article 48 of the VIS Regulation.

Article 21 Verification of entry conditions and risk assessment 1. In the examination of an application for a uniform visa, it shall be ascertained whether the applicant fulfils the entry conditions set out in Article 5(1)(a), (c), (d) and (e) of the Schengen Borders Code, and particular consideration shall be given to assessing whether the applicant presents a risk of illegal immigration or a risk to the security of the Member States and whether the applicant intends to leave the territory of the Member States before the expiry of the visa applied for. 2. In respect of each application, the VIS shall be consulted in accordance with Articles 8(2) and 15 of the VIS Regulation. Member States shall ensure that full use is made of all search criteria pursuant to Article 15 of the VIS Regulation in order to avoid false rejections and identifications. 3. While checking whether the applicant fulfils the entry conditions, the consulate shall verify: (a) that the travel document presented is not false, counterfeit or forged; (b) the applicant’s justification for the purpose and conditions of the intended stay, and that he has sufficient means of subsistence, both for the duration of the 113

ECJ, Koushkaki, C-84/12, EU:C:2013:862. Jensen, CEPS Paper in Liberty and Security No 68, p. 7. 115 Jensen, CEPS Paper in Liberty and Security No 68, p. 7. 114

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intended stay and for the return to his country of origin or residence, or for the transit to a third country into which he is certain to be admitted, or is in a position to acquire such means lawfully; (c) whether the applicant is a person for whom an alert has been issued in the Schengen Information System (SIS) for the purpose of refusing entry; (d) that the applicant is not considered to be a threat to public policy, internal security or public health as defined in Article 2(19) of the Schengen Borders Code or to the international relations of any of the Member States, in particular where no alert has been issued in Member States’ national databases for the purpose of refusing entry on the same grounds; (e) that the applicant is in possession of adequate and valid travel medical insurance, where applicable. 4. The consulate shall, where applicable, verify the length of previous and intended stays in order to verify that the applicant has not exceeded the maximum duration of authorised stay in the territory of the Member States, irrespective of possible stays authorised under a national long-stay visa or a residence permit issued by another Member State. 5. The means of subsistence for the intended stay shall be assessed in accordance with the duration and the purpose of the stay and by reference to average prices in the Member State(s) concerned for board and lodging in budget accommodation, multiplied by the number of days stayed, on the basis of the reference amounts set by the Member States in accordance with Article 34(1)(c) of the Schengen Borders Code. Proof of sponsorship and/or private accommodation may also constitute evidence of sufficient means of subsistence. 6. In the examination of an application for an airport transit visa, the consulate shall in particular verify: (a) that the travel document presented is not false, counterfeit or forged; (b) the points of departure and destination of the third-country national concerned and the coherence of the intended itinerary and airport transit; (c) proof of the onward journey to the final destination. 7. The examination of an application shall be based notably on the authenticity and reliability of the documents submitted and on the veracity and reliability of the statements made by the applicant. 8. During the examination of an application, consulates may in justified cases call the applicant for an interview and request additional documents. 9. A previous visa refusal shall not lead to an automatic refusal of a new application. A new application shall be assessed on the basis of all available information. Content I. General scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. The possibility of an interview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Proposals for reform. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 4

I. General scope 1

The ECJ clarified the purpose of Article 21 and its relationship with Article 32(1) on refusal of a visa in its judgment in Koushkaki (see below Article 32 MN 3). According to the ECJ: ‘…the purpose of Article 21 of the Visa Code is to determine general rules for the verification of entry conditions and risk assessment during the examination of an application for a uniform visa.

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Art. 21

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Thus, Article 21(1) sets out the factors which must be verified or which particular consideration must be given before any decision on an application for a uniform visa is taken, without thereby drawing up a precise list of the conditions for the issue of such a visa. The other paragraphs of that article, for their part, set out the methods which the competent authorities of the Member State concerned must use to verify the entry conditions and perform the risk assessment, depending on the situation with which they are faced. …. On the other hand, it is clear that Article 32(1) of the Visa Code establishes a list of grounds on which an application for a uniform visa must be rejected. It follows from the foregoing that, while Article 21(1) of the Visa Code requires the competent authorities to verify or assess certain factors, Article 32(1) of that code determines the conclusions which must be drawn from the result of that verification and that assessment, in the light of the grounds for refusal listed in the latter article’.116

The ECJ, furthermore, stressed the complexity of assessing the individual position of a visa applicant for the purpose of determining whether there is a ground for visa refusal under Article 32(1) which finds reflection in Article 21 conferring a wide discretion on the Member States’ authorities in the examination of visa applicants.117 Article 21(2) provides that in respect of each application the VIS is to be consulted to 2 check any previous applications and for the purpose of examining the application at hand. However, Article 21(9) states that a previous visa refusal shall not lead to an automatic refusal of a new application.

II. The possibility of an interview Article 21(8) states that ‘in justified cases’, which, according to the Visa Handbook, 3 includes cases when the examination of the visa application ‘does not allow for taking a final decision’,118 consulates may call the applicant for an interview and request additional documents. Under the Regulation and as clarified by the ECJ in Koushkaki,119 it is the visa applicant’s responsibility to provide the relevant supporting documents to demonstrate that he meets the entry conditions of the Schengen Borders Code Regulation (EC) No 562/2006. Article 21(8) establishes a discretion, not an obligation, for the consulate to request additional documents. However, some national courts have upheld challenges to visa refusal decisions by consulates based on lack of reliable information regarding the purpose and conditions of the stay. The Austrian High Administrative Court held in two cases that in the circumstances of the cases not granting the appliant the right to be heard before the visa is refused under the Regulation constituted a violation of procedural rules.120

III. Proposals for reform The Commission proposal on amending and recasting the Regulation provides that a 4 ‘VIS registered regular traveller’ (see above Article 1 MN 4) who has lawfully used the two previously obtained visas shall be presumed to fulfil the entry conditions regarding 116

ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 27–28, 31–32. ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 56–63. 118 Commission Decision, C(2010) 1620 final, as amended by Commission Implementing Decision, C(2014) 2727 final, part II, para 7.11. 119 ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 71–72. 120 See the Austrian High Administrative Court (Verwaltungsgerichtshof), 2011/21/0232, cited in Fundamental Rights Agency, Annual Report 2012, p. 93. See also Austrian High Administrative Court (Verwaltungsgerichtshof), 2010/21/0344, available at: http://www.ris.bka.gv.at/Vwgh/[last accessed 06 April 2015]. 117

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the risk of irregular immigration, the risk to the security of the Member States and the possession of sufficient means of subsistence. This presumption is reversible in individual cases. This proposed amendment has found opposition in the Council, which has criticised the ‘automaticity’ of the issuing of visas to this category.121 The proposal is silent in relation to third country national family members of EU citizens covered by the Free Movement Directive 2004/38/EC (see Article 1 MN 9).

Article 22 Prior consultation of central authorities of other Member States 1. A Member State may require the central authorities of other Member States to consult its central authorities during the examination of applications lodged by nationals of specific third countries or specific categories of such nationals. Such consultation shall not apply to applications for airport transit visas. 2. The central authorities consulted shall reply definitively within seven calendar days after being consulted. The absence of a reply within this deadline shall mean that they have no grounds for objecting to the issuing of the visa. 3. Member States shall notify the Commission of the introduction or withdrawal of the requirement of prior consultation before it becomes applicable. This information shall also be given within local Schengen cooperation in the jurisdiction concerned. 4. The Commission shall inform Member States of such notifications. 5. From the date of the replacement of the Schengen Consultation Network, as referred to in Article 46 of the VIS Regulation, prior consultation shall be carried out in accordance with Article 16(2) of that Regulation. 1

The provisions on prior consultation in Article 22 were carried over from the Common Consular Instructions (see above Article 1 MN 2) with the difference that the deadline for a reply has been shortened by Article 22 to seven calendar days and the list of the nationalities subject to prior consultation has been made public, although the identity of the Member States requiring such consultation is not. The provisions are complemented by the ex-post information provisions in Article 31. Prior consultation is required in relation to nationals of 30 countries. In some cases, it relates only to holders of certain official passports or to specific categories of individuals identified by ‘age and gender’.122 Article 39(3) reiterates however that consular authorities, while performing their tasks, shall respect the principle of non-discrimination, which is a fundamental norm of the EU legal order.123 The Commission reports that the ‘hit rate’ of such consultation is extremely low and that visas are rarely refused as a result of prior consultation.124 In the case of visa refusal, as Peers points out, an obligation for the consulted Member State to give reasons is necessarily implied in the Regulation as it would otherwise be impossible for the consulting Member State to satisfy its obligation to give reasons for the visa refusal decision and for the visa applicant to exercise his or her right of appeal under the Regulation.125 If the consulted Member State objects to the issue of a uniform visa, the consulting Member State has the power to issue a LTV visa under Article 25. 121

Council doc. 6093/2015 of 13 February 2015, p. 3. Commission Staff Working Document, SWD(2014) 101 final, p. 20. 123 Article 21 CFR; see also ECJ, Mangold, C-144/04, EU:C:205:709. 124 Commission Staff Working Document, SWD(2014) 101 final, p. 20. 125 Peers, in Peers/Guild/Tomkin (eds), EU Immigration and Asylum Law, p. 251, 261. 122

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Art. 23

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Article 23 Decision on the application 1. Applications shall be decided on within 15 calendar days of the date of the lodging of an application which is admissible in accordance with Article 19. 2. That period may be extended up to a maximum of 30 calendar days in individual cases, notably when further scrutiny of the application is needed or in cases of representation where the authorities of the represented Member State are consulted. 3. Exceptionally, when additional documentation is needed in specific cases, the period may be extended up to a maximum of 60 calendar days. 4. Unless the application has been withdrawn, a decision shall be taken to: (a) issue a uniform visa in accordance with Article 24; (b) issue a visa with limited territorial validity in accordance with Article 25; (c) refuse a visa in accordance with Article 32; or (d) discontinue the examination of the application and transfer it to the relevant authorities of the represented Member State in accordance with Article 8(2). The fact that fingerprinting is physically impossible, in accordance with Article 13(7)(b), shall not influence the issuing or refusal of a visa. Content I. Time limits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Possible decisions and the right of appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2

I. Time limits Article 23(1), (2) and (3) contains deadlines for a decision on a visa application to be 1 reached. Visa facilitation agreements between the EU and third countries may provide for shorter deadlines (see above Article 1 MN 10).126 Visas to third country national family members of EU citizens covered by the Free Movement Directive 2008/34/EC must be issued, by virtue of Article 5(2) of such Directive, ‘as soon as possible and on the basis of an accelerated procedure’. The Commission proposal for amending and recasting the Regulation (see above Article 1 MN 4 and 9) in this context is rather confusing. Draft article 20(3) provides for a 5 day mandatory time limit applicable only in relation to ‘core’ family members as referred to in Article 3(1) of the Directive, unlike all other visa facilitations in the proposal, which are applicable to both ‘core’ and ‘extended’ family members. The proposal extends this mandatory time limit to apply also in the case of ‘close’ relatives of EU citizens outside the scope of the Directive (see above Article 1 MN 4). Draft article 20(4) goes on to provide that the mandatory time limit applies as a ‘maximum’ in relation to family members as referred in Article 3 of the Directive, i. e. both ‘core’ and ‘extended’, but it is silent on family members outside the scope of the Directive, seemingly implying that in their case the mandatory time limit of 5 days does not apply as a ‘maximum’.

II. Possible decisions and the right of appeal Four possible decisions on a visa application are envisaged by Article 23(4): (a) the 2 issuing of a uniform visa in accordance with Article 24; (b) the issuing of an LTV in 126

See for example Article 7 EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/49).

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accordance with Article 25; (c) the refusal of a visa in accordance with Article 32; ‘or’ (d) in cases of representation, the transfer of the applicant’s file to the represented Member State for a decision. The word ‘or’ seems to suggest that if a visa applicant applies for a uniform visa but is issued with an LTV visa instead, there is no decision refusing a uniform visa and therefore no right of appeal. Peers points out however that: ‘…in light of the obvious differences between LTV and uniform visas, the better view is that refusing an application for a uniform visa and issuing an LTV visa instead amounts to a refusal of the original application for the purpose of the [Visa] Code. This means that the obligation to notify the refusal and the reasons for it, and the right to appeal, are still applicable’.127

CHAPTER IV Issuing of the visa Article 24 Issuing of a uniform visa 1. The period of validity of a visa and the length of the authorised stay shall be based on the examination conducted in accordance with Article 21. A visa may be issued for one, two or multiple entries. The period of validity shall not exceed five years. In the case of transit, the length of the authorised stay shall correspond to the time necessary for the purpose of the transit. Without prejudice to Article 12(a), the period of validity of the visa shall include an additional ‘period of grace’ of 15 days. Member States may decide not to grant such a period of grace for reasons of public policy or because of the international relations of any of the Member States. 2. Without prejudice to Article 12(a), multiple-entry visas shall be issued with a period of validity between six months and five years, where the following conditions are met: (a) the applicant proves the need or justifies the intention to travel frequently and/or regularly, in particular due to his occupational or family status, such as business persons, civil servants engaged in regular official contacts with Member States and EU institutions, representatives of civil society organisations travelling for the purpose of educational training, seminars and conferences, family members of citizens of the Union, family members of third-country nationals legally residing in Member States and seafarers; and (b) the applicant proves his integrity and reliability, in particular the lawful use of previous uniform visas or visas with limited territorial validity, his economic situation in the country of origin and his genuine intention to leave the territory of the Member States before the expiry of the visa applied for. 3. The data set out in Article 10(1) of the VIS Regulation shall be entered into the VIS when a decision on issuing such a visa has been taken. 1

Article 24(2)(a) and (b) provides the conditions under which multiple entry visas (MEVs) ‘shall’ be issued. The first condition, in Article 24(2)(a), is clear and precise to the effect that it should be possible in practice to assess whether an individual satisfies it. Article 24(2)(a) includes the only reference in the whole Regulation to ‘family members 127

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Art. 25

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of third country nationals legally residing in Member States’ and to ‘family members of citizens of the Union’ generally (see above Article 1 MN 4). The second condition, in Article 24(2)(b), concerns the applicant’s ability to prove his ‘integrity and reliability’. According to the Commission, as already mentioned in the context of Articles 10(2) and 14(6), this notion is not precise and is prone to subjective interpretation (see above Article 10 MN 4 and Article 14 MN 3). It may therefore be difficult for a visa applicant to claim to be entitled to an MEV. In this context, it also appears that, in cases where the visa application process has been outsourced in accordance with Article 43, some external service providers refused to accept applications for MEVs,128 notwithstanding that under Article 43(4) the consulates retain sole responsibility for examining and deciding on visa applications. The number of MEVs issued by the Member States appears to be growing steadily. However, the larger proportion of MEVs are issued in countries with which the EU has visa facilitation agreements, which make provision for the issue of such visas,129 and the Member States tend to be reluctant to issue MEVs with a validity longer than a year. The Commission proposal for amending and recasting the Regulation makes some 2 important changes to Article 24. It provides that an MEV valid for at least three years shall be issued to ‘VIS registered regular traveller’ who have lawfully used the two previously obtained visas (see above Article 1 MN 4). Once they have also used such an MEV lawfully, they are entitled to an MEV valid for five years provided that they lodge an application no later than one year after the expiry date of the first MEV. The Council has however criticised this proposed amendment because of the ‘automaticity’ it involves in the issuing of visas to this particular category.130 In other ways, the Commission proposal restricts the current scope of Article 24 drastically. It provides that an MEV valid for up to 5 years ‘may’, as opposed to the current ‘shall’, be issued to an applicant who proves the need or justifies the intention to travel frequently and/or regularly ‘provided that’ he proves his integrity and reliability. The current reference to ‘family members of citizens of the Union’ and ‘family members of third country nationals legally residing in Member States’ is deleted.131

Article 25 Issuing of a visa with limited territorial validity 1. A visa with limited territorial validity shall be issued exceptionally, in the following cases: (a) when the Member State concerned considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations, (i) to derogate from the principle that the entry conditions laid down in Article 5(1)(a), (c), (d) and (e) of the Schengen Borders Code must be fulfilled; (ii) to issue a visa despite an objection by the Member State consulted in accordance with Article 22 to the issuing of a uniform visa; or (iii) to issue a visa for reasons of urgency, although the prior consultation in accordance with Article 22 has not been carried out; or 128

Commission Staff Working Document, SWD(2014) 101 final, p. 34. See for example Article 5 EU-Azerbaijan Visa Facilitation Agreement (OJ 2014 L 128/49). 130 Council doc. 6093/15 of 13 February 2015, p. 3. 131 Draft Article 21, Commission Proposal, COM(2014) 164 final. 129

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(b) when for reasons deemed justified by the consulate, a new visa is issued for a stay during the same 180-day period to an applicant who, over this 180-day period, has already used a uniform visa or a visa with limited territorial validity allowing for a stay of 90 days. 2. A visa with limited territorial validity shall be valid for the territory of the issuing Member State. It may exceptionally be valid for the territory of more than one Member State, subject to the consent of each such Member State. 3. If the applicant holds a travel document that is not recognised by one or more, but not all Member States, a visa valid for the territory of the Member States recognising the travel document shall be issued. If the issuing Member State does not recognise the applicant’s travel document, the visa issued shall only be valid for that Member State. 4. When a visa with limited territorial validity has been issued in the cases described in paragraph 1(a), the central authorities of the issuing Member State shall circulate the relevant information to the central authorities of the other Member States without delay, by means of the procedure referred to in Article 16(3) of the VIS Regulation. 5. The data set out in Article 10(1) of the VIS Regulation shall be entered into the VIS when a decision on issuing such a visa has been taken. Content I. II. III. IV.

Does Article 25 preclude the issue of a uniform visa?. . . . . . . . . . . . . . . . . . . . . . Rights of appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Does Article 25 establish an obligation to issue LTV visas? . . . . . . . . . . . . . . . Statistics on LTV visas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 4

I. Does Article 25 preclude the issue of a uniform visa? 1

Article 25 governs the conditions for issuing Limited Territorial Validity (LTV) visas, which, under Article 2(4) are visas ‘valid for the territory of one or more Member States but not all Member States’. Article 25 is linked to Article 19(4). It is unclear whether Article 25(1), in the light of the term ‘shall’ in particular, has the effect of precluding the Member States from issuing uniform visas in all the cases listed. According to Peers, such an interpretation should be rejected because it would have the effect in practice of adding further grounds for uniform visa refusals to those already listed in Article 32(1), which, as clarified by the ECJ in Koushkaki (see below Article 32 MN 3), are exhaustive.132 In particular, such an interpretation would require, under Article 25(1)(a)(ii), refusing uniform visas in cases of ‘an objection by the Member State consulted’ in the context of prior consultation arrangements under Article 22, and in cases of an inability by a Member State to carry out prior consultation because of urgency, under Article 25(1)(a)(iii). Furthermore, Article 25(3) provides that LTV visas shall be issued in cases of applicants possessing documents which are not recognized by one or more Member States. Still, it could be argued that Article 25(1)(a)(ii) adds nothing to the grounds for uniform visa refusal in Article 32(1). This is because it is possible to argue that in prior consultation cases, the consulted Member State has still a duty to give the reasons for its objection to the issuing of a visa and those reasons must be among those envisaged in Article 32(1). To state otherwise would render the rights in Article 32(2) 132 Peers, in Peers/Guild/Tomkin (eds), EU Immigration and Asylum Law, p. 251, 261. ECJ, Koushkaki, C-84/12, EU:C:2013:862.

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and (3) nugatory (see above Article 22 MN 1). The situation is however different with regard to Article 25(1)(a)(iii) and Article 25(3).

II. Rights of appeal On the basis of Article 23, it is unclear whether an applicant who is refused a uniform 2 visa and issued instead with an LTV visa can appeal against the uniform visa refusal in accordance with Article 32(3) (see above Article 23 MN 2). With regard to refusal of an LTV visa, the Regulation does not expressly provide for a right of appeal as in cases of uniform visa refusal, annulment and revocation. The significance of this omission is linked to the question of whether Article 25(1) establishes an obligation for the Member States to issue LTV visas when the relevant conditions are satisfied.

III. Does Article 25 establish an obligation to issue LTV visas? It has been argued that the reasoning of the ECJ in Koushkaki (see below Article 32 3 MN 3) can be applied by analogy to Article 25(1), particularly in light of the term ‘shall’ in that Article, to the effect that applicants who satisfy the relevant conditions for the issuing of LTV visas are entitled to such visas.133 It is however true that Article 25(1) envisages the issuing of LTV visas ‘exceptionally’ and ‘when the Member State concerned considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations’. With regard to the latter ground, Peers states that ‘arguably, the binding nature of the relevant international obligations,….override[s] the discretion suggested by the words “considers it necessary”’.134 In this context, it can be noted that while it is generally accepted that states are free to control the entry and residence of aliens into their territory as part of their sovereignty, state sovereignty in this area is not absolute. Principles of general international law and obligations arising out of treaties limit state discretion as to entry, transit, residence and expulsion of aliens.135 In the context of visas as an interdiction measure, the question which emerges with particular force is whether the prohibitions of refoulement in such instruments such as the Geneva Convention, the ECHR and the CFR may be applicable to such extraterritorial settings as visa issuing.136 It is generally accepted that Article 33(1) of the Geneva Convention establishing the principle of non-refoulement does not apply in the case of visa applications by individuals at a consulate in their country of origin because under Article 1(A)(2) of the Convention an individual needs to be outside his country of 133 Peers, External processing of applications for international protection in the EU, EU Law Analysis (2014), available at: http://eulawanalysis.blogspot.co.uk/2014/04/last-autumns-huge-loss-of-lives-near.html [last accessed 06 April 2015]; Jensen, CEPS Paper in Liberty and Security No 68, p. 16–17; ECJ, Koushkaki, C-84/12, EU:C:2013:862. 134 Peers, External processing of applications for international protection in the EU, EU Law Analysis (2014), available at: http://eulawanalysis.blogspot.co.uk/2014/04/last-autumns-huge-loss-of-lives-near.html [last accessed 06 April 2015]; Jensen, CEPS Paper in Liberty and Security No 68, p. 20. 135 For an overview, see Meloni, Visa Policy, p. 7–24. 136 This question has been considered in great depth by scholars. See for example Noll, IJRL 2005, p. 542; Goodwin-Gill/McAdam, The Refugee, p. 244–252; Lauterpacht/Bethlehem, in Feller/Tu¨rk/Nicholson (eds), Refugee Protection, p. 87, 109–128; Hathaway, The Rights of Refugees, p. 160–171; den Heijer, Europe and Extraterritorial Asylum, p. 120–141; Moreno Lax, EJML 2008, p. 315. On national courts’ attitude to the extraterritorial application of the Geneva Convention, see the US Supreme Court, Sale v Haitian Center Council, Judgment of 21 June 1993, (1993) 113 S.Ct 2549, paras 181–182; UK House of Lords, R (European Roma Rights Centre) v Immigration Officer at Prague Airport, Judgment of 9 December 2004, [2004] UKHL 55, paras 17,64,70.

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nationality to qualify for refugee status. Neither will Article 33(1) apply in the case of visa applications by individuals at a consulate in a third state when such a third state does not intend to remove the individuals concerned.137 More controversially, den Heijer submits that, on a literal interpretation, Article 33(1) does not cover excluding acts by a state when these acts are undertaken within a third state where prosecution is feared as ‘one cannot return … a person to the territory of a third state if that person already finds himself in that territory’.138 Lauterpacht and Bethlehem submit, on the other hand, that the application of the principle on non-refoulement in such circumstances depends on whether the refugee or asylum-seeker can be considered under the protection of the state concerned. According to them, ‘[t]his may arise, for example, in circumstances in which a refugee or asylum seeker takes refuge in the diplomatic mission of another State….’.139 Furthermore, there is disagreement among scholars as to whether Article 33(1) of the Convention can be triggered in the case of visa refusal to an individual at a consulate in a third states when such a third state is preparing the removal of the individual. Noll denies that this is the case on the ground that ‘the terms “expel” or “refouler”’ in Article 33(1) of the Geneva Convention ‘suggest a direct sovereign relationship between the removing agent and the territory from which removal takes place’.140 According to Hathaway, on the other hand, in line with basic principles of international law, the textual reading and the drafting history of the Geneva Convention, ‘[t]he small set of core refugee rights [including non-refoulement] subject to no [territorial] attachment requirement … applies to state parties which exercise de facto jurisdiction over refugees not physically present in their territory’.141 Goodwin-Gill and McAdam suggest that Article 33(1) can be triggered when denial of an entry visa ‘directly exposes and individual to a risk of refoulement’.142 As they state, ‘it is well established that the principle of non-refoulement includes protection from return to territories where the individual, although not directly at risk of persecution, torture, or cruel, inhuman or degrading treatment or punishment, faces a danger of being expelled to other territories where such a risk exists’. In such cases of ‘indirect’ or ‘chain’ refoulement, although the acts of the state which lead to the individual’s refoulement by another state cannot be described as refoulement per se, the state in question, as a matter of state responsibility, can still incur liability.143 With regard to the right of asylum in Article 18 of the CFR, which is applicable to the EU institutions and to the Member States when acting within the scope of EU law, according to Noll, writing in 2005, it is dubious whether it adds anything to Article 33(1) of the Geneva Convention.144 The scope of this provision is however still to be determined. The situation is different with regard to non-refoulement under the ECHR. Article 1 of the ECHR requires the Contracting Parties to ‘secure to everyone within their jurisdiction’ the rights in the Convention. In Bankovic´, the ECtHR, although holding that the jurisdictional competence of a state is primarily territorial, identified a number 137

Noll, IJRL 2005, p. 542, 555. Den Heijer, Europe and Extraterritorial Asylum, p. 132. 139 Lauterpacht/Bethlehem, in Feller/Tu ¨ rk/Nicholson (eds), Refugee Protection, p. 87, 122. 140 Noll, IJRL 2005, p. 542, 555. 141 Hathaway, The Rights of Refugees, p. 161. 142 Goodwin-Gill/McAdam, The Refugee, p. 252. See also Lauterpacht/Bethlehem, in Feller/Tu ¨ rk/ Nicholson (eds), Refugee Protection, p. 87, 109–128; Den Heijer, Europe and Extraterritorial Asylum, p. 122–132; Moreno Lax, EJML 2008, p. 315, 339–344. 143 Goodwin-Gill/McAdam, The Refugee, p. 252. 144 Noll, IJRL 2005, p. 542, 547–548. See however Gil-Bazo, ‘The Charter of Fundamental Rights of the European Union and the Right to be granted Asylum in the Union’s law’, RQS 27 (2008), p. 33. 138

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of instances of extra-territorial jurisdiction by a state covered by the Convention, including activities of a state diplomatic and consular agents in third countries.145 In the context of the ECHR, jurisdiction is therefore to be interpreted as referring to an administrative rather than a geographical border.146 On this basis, it is generally submitted that Article 3 ECHR (and therefore Article 4 CFR with regard to the EU institutions and the Member States when applying EU law) requires Contracting Parties to grant visas through their diplomatic representations to applicants in certain situations.147 According to Noll, ‘[s]uch situations are characterized by a pressing need of protection in the state from which an entry visa is requested. In particular, there would be no other protection options accessible to the claimant in order to avoid subjection to treatment coming under the scope of article 3 ECHR’.148 He further suggests that visa applicants may have more difficulties to show that they fall within the protection afforded by Article 3 ECHR than asylum applicants who are present on state territory due to the different ‘degree of consumption demanded of a state in a situation of nonremoval and a situation of allowing entry’.149 Noll points out that in principle all human rights in the Convention and its Protocols may impact in this way the legality of visa refusal, the limitative element being the scope of the positive obligations under the rights in the situation at hand.150 In this context, den Heijer, who does not however deal expressing to the cases of visa refusal, introduces a distinction between cases where it is alleged that exclusion leads to an interference with ECHR rights in the country to which the individual is removed (‘foreign’ cases) and cases where the interference would be within the territory of the excluding country (‘domestic’ cases). He illustrates that, in ‘foreign’ (Soering type) cases, the ECtHR has shown considerable restraint in extending the scope of the Convention to cases in which other provisions than Articles 2 and 3 are at stake.151 According to the ECtHR, Article 5, for example, would apply to expulsion cases only if there was a ‘real risk of a flagrant breach of that Article’. A flagrant breach ‘would occur only if, for example, the receiving state arbitrarily detained an applicant for many years without any intention to bring him or her to trial’. It might also occur ‘if an applicant would be at risk of being imprisoned for a substantial period in the receiving state having previously been convicted after a flagrantly unfair trial’.152 Likewise, the ECtHR has found that Article 6 applies in expulsion cases only ‘where the fugitive had suffered or risked suffering a flagrant denial of justice in the requesting country’. The ECtHR found that this high threshold was met, for example, when a real risk of admission of evidence obtained by 145 ECtHR, Decision of 12 December 2001 (GC), No. 52207/99, Bankovic ´ and Others v Belgium and Others, paras 58, 73. See also ECtHR, Judgment of 23 February 2012 (GC), No. 27765/09, Hirsi Jamaa and Others v Italy, paras 70–81. 146 Noll, IJRL 2005, p. 542, 567. 147 Noll, IJRL 2005, p. 542, 565; Moreno-Lax, EJML 2008, p. 315, 362. 148 Noll, IJRL 2005, p. 542, 564. See also ECtHR, Judgment of 7 July 1988, No. 14038/88, Soering v the United Kingdom. 149 Noll, IJRL 2005, p. 542, 569. In R (on the application of Band others) v Secretary of State for the Foreign and Commonwealth Office, Judgment of the 18 October 2004, [2004] EWCA Civ 1344, para 89, the UK Court of Appeal applied a very high threshold for engaging Article 3 ECHR in a diplomatic asylum case. According to the Court, the duty to provide refuge under Article 3 ECHR is to be offset by the receiving state right under international law to require surrender of a fugitive. Cases of visa refusals are however different from cases of diplimatic asylum in terms of the degree of interference by the sending state with the receiving state authority as deriving from its territorial jurisdiction. 150 Noll, IJRL 2005, p. 542, 565, 568. 151 Den Heijer, EJML 2008, p. 278. 152 ECtHR, Judgment of 17 January 2012, No. 8139/09, Othman (Abu Qatada) v the United Kingdom, para 233.

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Part B III Art. 26

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torture was established.153 Den Heijer explains the higher threshold for the applicability of the Convention in ‘foreign cases’, which is made operational by a distinction between norms representing a fundamental value and norms representing ‘ordinary’ values, in terms of the extra-territorial factor at play.154 It remains true that even in ‘domestic’ cases the threshold for engaging ECHR rights, such as Article 8, in exclusion cases is high, unless the exclusion is solely for the purpose of preventing the individual from exercising such rights.155

IV. Statistics on LTV visas 4

Although no comprehensive statistics are available, it appears that the number of LTV visas issued by the Member States remains low (about 2 % of all visa issued in 2012),156 and they are issued primarily to bypass the prior consultation procedure in Article 22.157 It is also the case that 16 EU Member States have or have had Schengen visas available for humanitarian reasons.158

Article 26 Issuing of an airport transit visa 1. An airport transit visa shall be valid for transiting through the international transit areas of the airports situated on the territory of Member States. 2. Without prejudice to Article 12(a), the period of validity of the visa shall include an additional ‘period of grace’ of 15 days. Member States may decide not to grant such a period of grace for reasons of public policy or because of the international relations of any of the Member States. 3. Without prejudice to Article 12(a), multiple airport transit visas may be issued with a period of validity of a maximum six months. 4. The following criteria in particular are relevant for taking the decision to issue multiple airport transit visas: (a) the applicant’s need to transit frequently and/or regularly; and (b) the integrity and reliability of the applicant, in particular the lawful use of previous uniform visas, visas with limited territorial validity or airport transit visas, his economic situation in his country of origin and his genuine intention to pursue his onward journey. 5. If the applicant is required to hold an airport transit visa in accordance with the provisions of Article 3(2), the airport transit visa shall be valid only for transiting through the international transit areas of the airports situated on the territory of the Member State(s) concerned. 6. The data set out in Article 10(1) of the VIS Regulation shall be entered into the VIS when a decision on issuing such a visa has been taken. 153 ECtHR, Judgment of 17 January 2012, No. 8139/09, Othman (Abu Qatada) v United Kingdom, para 258–280. 154 Den Heijer, EJML 2008, p. 278, 313. 155 See the UK Court of Appeal, Judgment of 30 April 2002, R v Secretary of State for the Home Department, ex parte Louis Farrakhan [2002] EWCA Civ 606, para 55. 156 Available at: http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/visa-policy/index_en.htm [last accessed 06 April 2015]. 157 Commission Staff Working Document, SWD(2014) 101 final, p. 24; Meloni, European Law Review 2009, p. 671, 684. 158 Jensen, CEPS Paper in Liberty and Security No 68, p. 6.

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Art. 29

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Article 27 Filling in the visa sticker 1. When the visa sticker is filled in, the mandatory entries set out in Annex VII shall be inserted and the machine-readable zone filled in, as provided for in ICAO document 9303, Part 2. 2. Member States may add national entries in the ‘comments’ section of the visa sticker, which shall not duplicate the mandatory entries in Annex VII. 3. All entries on the visa sticker shall be printed, and no manual changes shall be made to a printed visa sticker. 4. Visa stickers may be filled in manually only in case of technical force majeure. No changes shall be made to a manually filled in visa sticker. 5. When a visa sticker is filled in manually in accordance with paragraph 4 of this Article, this information shall be entered into the VIS in accordance with Article 10(1)(k) of the VIS Regulation.

Article 28 Invalidation of a completed visa sticker 1. If an error is detected on a visa sticker which has not yet been affixed to the travel document, the visa sticker shall be invalidated. 2. If an error is detected after the visa sticker has been affixed to the travel document, the visa sticker shall be invalidated by drawing a cross with indelible ink on the visa sticker and a new visa sticker shall be affixed to a different page. 3. If an error is detected after the relevant data have been introduced into the VIS in accordance with Article 10(1) of the VIS Regulation, the error shall be corrected in accordance with Article 24(1) of that Regulation.

Article 29 Affixing a visa sticker 1. The printed visa sticker containing the data provided for in Article 27 and Annex VII shall be affixed to the travel document in accordance with the provisions set out in Annex VIII. 2. Where the issuing Member State does not recognise the applicant’s travel document, the separate sheet for affixing a visa shall be used. 3. When a visa sticker has been affixed to the separate sheet for affixing a visa, this information shall be entered into the VIS in accordance with Article 10(1)(j) of the VIS Regulation. 4. Individual visas issued to persons who are included in the travel document of the applicant shall be affixed to that travel document. 5. Where the travel document in which such persons are included is not recognised by the issuing Member State, the individual stickers shall be affixed to the separate sheets for affixing a visa.

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Article 30 Rights derived from an issued visa Mere possession of a uniform visa or a visa with limited territorial validity shall not confer an automatic right of entry. 1

Article 30 clarifies that a uniform or LTV visa does not entitle the holder to a right of entry. Thus, a visa holder can be sent back at the border if border authorities find that entry conditions are not fulfilled then.

Article 31 Information of central authorities of other Member States 1. A Member State may require that its central authorities be informed of visas issued by consulates of other Member States to nationals of specific third countries or to specific categories of such nationals, except in the case of airport transit visas. 2. Member States shall notify the Commission of the introduction or withdrawal of the requirement for such information before it becomes applicable. This information shall also be given within local Schengen cooperation in the jurisdiction concerned. 3. The Commission shall inform Member States of such notifications. 4. From the date referred to in Article 46 of the VIS Regulation, information shall be transmitted in accordance with Article 16(3) of that Regulation. 1

This ‘ex-post information’ procedure was introduced by the Regulation. Unlike the prior consultation procedure (see above Article 22), under this procedure individual Member States may require to be ‘informed’ about visas issued rather than consulted about visa applications. It was expected that this procedure would eventually supplant the prior consultation procedure, but this has not happened. Currently, there are 65 third countries on the ex-post information list, involving exchange of information on an extremely high number of visas. The Commission points out that, while the consequences of ex-post information are not settled by the Regulation (unlike for prior consultation), it appears that following ex-post information some Member States tend to annul or revoke visas issued by another Member State.159

Article 32 Refusal of a visa 1. Without prejudice to Article 25(1), a visa shall be refused: (a) if the applicant: (i) presents a travel document which is false, counterfeit or forged; (ii) does not provide justification for the purpose and conditions of the intended stay; (iii) does not provide proof of sufficient means of subsistence, both for the duration of the intended stay and for the return to his country of origin or residence, or for the transit to a third country into which he is certain to be admitted, or is not in a position to acquire such means lawfully; 159

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Art. 32

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(iv) has 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; (v) is a person for whom an alert has been issued in the SIS for the purpose of refusing entry; (vi) is considered to be a threat to public policy, internal security or public health as defined in Article 2(19) of the Schengen Borders Code or to the international relations of any of the Member States, in particular where an alert has been issued in Member States’ national databases for the purpose of refusing entry on the same grounds; or (vii) does not provide proof of holding adequate and valid travel medical insurance, where applicable; or (b) if there are reasonable doubts as to the authenticity of the supporting documents submitted by the applicant or the veracity of their contents, the reliability of the statements made by the applicant or his intention to leave the territory of the Member States before the expiry of the visa applied for. 2. A decision on refusal and the reasons on which it is based shall be notified to the applicant by means of the standard form set out in Annex VI. 3. Applicants who have been refused a visa shall have the right to appeal. Appeals shall be conducted against the Member State that has taken the final decision on the application and in accordance with the national law of that Member State. Member States shall provide applicants with information regarding the procedure to be followed in the event of an appeal, as specified in Annex VI. 4. In the cases referred to in Article 8(2), the consulate of the representing Member State shall inform the applicant of the decision taken by the represented Member State. 5. Information on a refused visa shall be entered into the VIS in accordance with Article 12 of the VIS Regulation. Article 32(1) lists the grounds under which a uniform visa ‘shall’ be refused by the 1 competent authorities of the Member States (see Article 35 below in relation to visas issued at the border). The Article states to be without prejudice to Article 25(1) on the issue of LTV visas on ‘humanitarian grounds, for reasons of national interest or because of international obligations’. Article 32(1) reflects Articles 5(1), (4)(c) and 13, on conditions and refusal of entry, of the Schengen Borders Code Regulation (EC) No 562/2006. However, unlike Article 13 of the Schengen Borders Code Regulation, Article 32(1) does not state to be ‘without prejudice to the application of special provisions concerning the right of asylum and to international protection…’. Similarly, there is nothing in the Regulation comparable to Article 3a of the Schengen Borders Code Regulation stating that ‘[w]hen applying the Regulation, the Member States shall act in full compliance with relevant Union law, including the Charter of Fundamental Rights…; relevant international law, including the Convention Relating to the Status of Refugees…; obligations relating to the access to international protection, in particular the principle of non-refoulement; and fundamental rights’. As explained above (see above Article 1 MN 11), this may reflect the fact that while it is generally accepted by the Member States that the obligation of non-refoulement under Article 33(1) of the Geneva Convention applies in relation to asylum-seekers who have reached their borders, there is no general acceptance that such an obligation can be triggered in relation to visa issuing abroad, which is the very reason why visa requirements have proliferated as interdiction measures. However, as discussed above (see above Article 25 MN 3), excluding the Meloni

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application of Article 33(1) of the Geneva Convention in all cases may be problematic, and it is furthermore clear that obligations of non-refoulement may arise in the visa issuing context under the ECHR and consequently the CFR. 2 The refusal grounds under Article 32(1) echo the entry conditions listed in Article 5(1) of the Schengen Borders Code Regulation (EC) No 562/2006 except that there is no reference in Article 32(1) to possession of a ‘valid travel document’. This is so as possession of a valid travel document, which is defined in Article 12, is treated by the Regulation as one of the conditions for the visa application to be ‘admissible’ in the first place, under Article 19. Furthermore, the Regulation includes lack of possession of travel medical insurance as a ground for refusal. As explained above, the Commission has proposed to delete this ground since possession of travel medical insurance is not checked at the border at the time of entry, as the requirement is not among the entry conditions established by the Schengen Borders Code Regulation (EC) No 562/2006. The Council has however opposed the deletion (see above Article 15 MN 1). 3 In Koushkaki the ECJ held that the grounds for refusing a uniform visa in Article 32(1) are exhaustive to the effect that if none of them applies to a visa applicant he will be entitled to a uniform visa.160 The Court arrived to the same conclusions in relation to the Schengen Borders Code Regulation (EC) No 562/2006 in Air Baltic Corporation,161 and the Students Directive 2004/114/EC in Ben Alaya.162 The Court arrived at such conclusions by considering the context of Article 32, particularly the fact that a Member State under Article 34 may revoke or annul a visa issued by another Member States, and the objectives of the Regulation which include establishing the conditions for issuing uniform visas, facilitating legitimate travel, precluding visa shopping and preventing the different treatment of visa applicants.163 The Court however stressed that, as reflected in Article 21, the assessment of the individual position of a visa applicant with a view to determining whether there is a ground for refusal of his application, entails ‘complex evaluations based, inter alia, on the personality of that applicant, his integration in the country where he resides, the political, social and the economic situation of that country and the potential threat posed by the entry of that applicant to public policy, internal security, public health or the international relations of any of the Member States’.164 Accordingly, the competent authorities have under the Regulation a wide discretion in this respect as apparent from the very wording of Articles 21(1) and 32(1) ‘which oblige those authorities to “[assess] whether the applicant presents a risk of illegal immigration” and to give “particular consideration” to certain aspects of his situation and to determine whether there are “reasonable doubts” as regards certain factors’.165 4 The standard form in Annex VI, for notifying and motivating visa refusal decisions, contains 11 categories of broadly formulated reasons echoing the grounds for refusal in Article 32(1). With regard to the 9th ground for refusal (‘your intention to leave the territory of the Member States before the expiry of the visa could not be ascertained’), the Highest Administrative Court in Austria has, in three cases, insisted that consulates must explain the concrete reasons for doubting that an applicant intends to return so as to allow applicants to submit counter-evidence and benefit from an effective remedy.166 160

ECJ, Koushkaki, C-84/12, EU:C:2013:862. ECJ, Air Baltic Corporation, C-575/12, EU:C:2014:2155, para 62. 162 ECJ, Ben Alaya, C-491/13, EU:C:2014:2187. 163 ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 33–55. 164 ECJ, Koushkaki, C-84/12, EU:C:2013:862, para 56. 165 ECJ, Koushkaki, C-84/12, EU:C:2013:862, para 61. 166 Austria, Verwaltungsgerichtshof, Decision of 16 May 2013, 2012/21/0158; Decision of 2 August 2013, 2013/21/0057; Decision of 2 August 2013, 2013/21/0064, cited in Fundamental Rights Agency, Annual Report 2013, p. 70. 161

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Art. 33

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Part B III

Under Article 30 of the Free Movement Directive 2008/34/EC, family members of EU citizens are entitled to fully reasoned refusals listing all specific factual and legal grounds.167 The right of appeal against decisions to refuse a uniform visa and the relating right to 5 be notified of the grounds for such decisions in Article 32(2) and (3) were among the most significant innovations introduced by the Regulation.168 They extend to annulment and revocation decisions (see below Article 34(6) and (7)) but not expressly to decisions holding a visa application ‘inadmissible’ (see Article 19 MN 2), decisions refusing the extension of a visa under Article 33 and decisions refusing an LTV visa (see Article 25 MN 2). By virtue of Article 58, these provisions became effective one year after the entry into force of the Regulation as several Member States needed a transitional period to introduce the necessary domestic changes. The Regulation provides that these procedural rights are to be exercised in accordance with national law. National arrangements are however subject to Article 47 of the CFR on the right to an effective remedy and a fair trial.169 On this basis, in 2013, the Commission initiated formal infringement proceedings against five Member States which do not provide access to a judicial body for an appeal or have problematic short deadlines or very high fees to lodge an appeal.170

CHAPTER V Modification of an issued visa Article 33 Extension 1. The period of validity and/or the duration of stay of an issued visa shall be extended where the competent authority of a Member State considers that a visa holder has provided proof of force majeure or humanitarian reasons preventing him from leaving the territory of the Member States before the expiry of the period of validity of or the duration of stay authorised by the visa. Such an extension shall be granted free of charge. 2. The period of validity and/or the duration of stay of an issued visa may be extended if the visa holder provides proof of serious personal reasons justifying the extension of the period of validity or the duration of stay. A fee of EUR 30 shall be charged for such an extension. 3. Unless otherwise decided by the authority extending the visa, the territorial validity of the extended visa shall remain the same as that of the original visa. 4. The authority competent to extend the visa shall be that of the Member State on whose territory the third-country national is present at the moment of applying for an extension. 5. Member States shall notify to the Commission the authorities competent for extending visas. 6. Extension of visas shall take the form of a visa sticker. 167 See Visa Handbook, Commission Decision, C(2010) 1620 final, as amended by Commission Implementing Decision, C(2014) 2727 final, part III, para 3.9. 168 Meloni, EL Rev 2009, p. 671, 690–695. 169 On judicial protection as a general principle of EU law see ECJ, Panayotova and Others, C-327/02, EU:C:2004:718. 170 Fundamental Rights Agency, Annual Report 2013, p. 70; Fundamental Rights Agency, Annual Report 2012, p. 91–92.

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7. Information on an extended visa shall be entered into the VIS in accordance with Article 14 of the VIS Regulation. 1

It could be argued that, on the basis of the judgment of the ECJ in Koushkaki (see above Article 32 MN 3),171 a visa holder is entitled under Article 33(1) to an extension of his visa if the relevant conditions are fulfilled. This is indeed the position taken in the Visa Handbook, which is non-legally binding. With regard to ‘humanitarian reasons’, the Visa Handbook mentions as examples ‘serious illness of the person concerned…or sudden serious illness or death of a close relative leaving in a Member State’. The Visa Handbook also clarifies that while under visa facilitation agreements between the EU and third countries it is mandatory to extend visas only in cases of force majeure, third country nationals covered by these agreements can benefit from the more generous provisions in the Regulation.172 It is more difficult to argue that Article 33(2) creates obligations to extend a visa. This is so both because of the word ‘may’ and because ‘serious personal reasons’ is not further defined, although some guidance is provided in the Visa Handbook. The Visa Handbook further provides that a visa fee can be charged when extending a visa under Article 33(2).173 Article 33 is silent on any right of appeal against decisions refusing the extension of a visa (see above Article 32 MN 5).

Article 34 Annulment and revocation 1. A visa shall be annulled where it becomes evident that the conditions for issuing it were not met at the time when it was issued, in particular if there are serious grounds for believing that the visa was fraudulently obtained. A visa shall in principle be annulled by the competent authorities of the Member State which issued it. A visa may be annulled by the competent authorities of another Member State, in which case the authorities of the Member State that issued the visa shall be informed of such annulment. 2. A visa shall be revoked where it becomes evident that the conditions for issuing it are no longer met. A visa shall in principle be revoked by the competent authorities of the Member State which issued it. A visa may be revoked by the competent authorities of another Member State, in which case the authorities of the Member State that issued the visa shall be informed of such revocation. 3. A visa may be revoked at the request of the visa holder. The competent authorities of the Member States that issued the visa shall be informed of such revocation. 4. Failure of the visa holder to produce, at the border, one or more of the supporting documents referred to in Article 14(3), shall not automatically lead to a decision to annul or revoke the visa. 5. If a visa is annulled or revoked, a stamp stating ‘ANNULLED’ or ‘REVOKED’ shall be affixed to it and the optically variable feature of the visa sticker, the security feature ‘latent image effect’ as well as the term ‘visa’ shall be invalidated by being crossed out. 6. A decision on annulment or revocation of a visa and the reasons on which it is based shall be notified to the applicant by means of the standard form set out in Annex VI. 171

ECJ, Koushkaki, C-84/12, EU:C:2013:862. Commission Decision, C(2010) 1620 final, as amended by Commission Implementing Decision, C(2014) 2727 final, Part V, para 1.1. 173 Commission Decision, C(2010) 1620 final, as amended by Commission Implementing Decision, C(2014) 2727 final, Part V, para 1.2. 172

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Art. 35

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7. A visa holder whose visa has been annulled or revoked shall have the right to appeal, unless the visa was revoked at his request in accordance with paragraph 3. Appeals shall be conducted against the Member State that has taken the decision on the annulment or revocation and in accordance with the national law of that Member State. Member States shall provide applicants with information regarding the procedure to be followed in the event of an appeal, as specified in Annex VI. 8. Information on an annulled or a revoked visa shall be entered into the VIS in accordance with Article 13 of the VIS Regulation. In Air Baltic Corporation, consistently with its judgment in Koushkaki (see above 1 Article 32 MN 3), the ECJ clarified that the grounds for annulling or revoking a visa under Article 34(1) and (2) are exhaustive.174 Consequently, the competent authorities of a Member State shall annul or revoke a visa only on the basis of one of the grounds for visa refusal in Article 32(1) (or Article 35 in cases of visas issued at the border). Accordingly, in Air Baltic Corporation, the fact that the visa was affixed on a passport which had been ‘cancelled’ by the issuing authority of a third country did not make the visa automatically ‘invalid’, and could not constitute a ground for annulling or revoking the visa under Article 34 as it is not expressly mentioned there.175 On the other hand, annulment or revocation of a visa is not a precondition to treat the staying of a visa holder as ‘irregular’. In the case of PPU – Vo, the ECJ clarified that criminal prosecution by the authorities of a Member State of an individual for assisting illegal immigration does not require the prior annulment of the visas obtained fraudulently from the authorities of another Member States by those smuggled.176 Furthermore, under Article 34(1) and (2), annulment or revocation of a visa requires ‘evidence’ respectively that the conditions for issuing the visas were not met at the time when the visa was issued or are no longer met. For annulment this will be the case in particular if there are ‘serious grounds’ for believing that the visa was fraudulently obtained. This has been interpreted in some national cases as a high threshold to the effect that a mere ‘initial suspicion’ that the visa had been fraudulently obtained was treated as insufficient to reach the required degree of probability of ‘serious grounds’ for visa annulment.177 Article 34(6) and (7) provides for an individual right to be notified with the reasons for visa annulment or revocation and for a right of appeal against such decisions (see above Article 32 MN 5).

CHAPTER VI Visas issued at the external borders Article 35 Visas applied for at the external border 1. In exceptional cases, visas may be issued at border crossing points if the following conditions are satisfied: (a) the applicant fulfils the conditions laid down in Article 5(1)(a), (c), (d) and (e) of the Schengen Borders Code; 174

ECJ, Air Baltic Corporation, C-575/12, EU:C:2014:2155; ECJ, Koushkaki, C-84/12, EU:C:2013:862. ECJ, Air Baltic Corporation, C-575/12, EU:C:2014:2155. 176 ECJ, PPU – Vo, C-83/12, EU:C:2012:202. 177 Germany, Higher Administrative Court of Saxony, 3rd Senate, 3 B 151/12t, OVG Saxony, cited in Fundamental Rights Agency, Annual Report 2012, p. 94. 175

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(b) the applicant has not been in a position to apply for a visa in advance and submits, if required, supporting documents substantiating unforeseeable and imperative reasons for entry; and (c) the applicant’s return to his country of origin or residence or transit through States other than Member States fully implementing the Schengen acquis is assessed as certain. 2. Where a visa is applied for at the external border, the requirement that the applicant be in possession of travel medical insurance may be waived when such travel medical insurance is not available at that border crossing point or for humanitarian reasons. 3. A visa issued at the external border shall be a uniform visa, entitling the holder to stay for a maximum duration of 15 days, depending on the purpose and conditions of the intended stay. In the case of transit, the length of the authorised stay shall correspond to the time necessary for the purpose of the transit. 4. Where the conditions laid down in Article 5(1)(a), (c), (d) and (e) of the Schengen Borders Code are not fulfilled, the authorities responsible for issuing the visa at the border may issue a visa with limited territorial validity, in accordance with Article 25(1)(a) of this Regulation, for the territory of the issuing Member State only. 5. A third-country national falling within a category of persons for whom prior consultation is required in accordance with Article 22 shall, in principle, not be issued a visa at the external border. However, a visa with limited territorial validity for the territory of the issuing Member State may be issued at the external border for such persons in exceptional cases, in accordance with Article 25(1)(a). 6. In addition to the reasons for refusing a visa as provided for in Article 32(1) a visa shall be refused at the border crossing point if the conditions referred to in paragraph 1(b) of this Article are not met. 7. The provisions on justification and notification of refusals and the right of appeal set out in Article 32(3) and Annex VI shall apply. 1

Article 35 is drafted so as to establish an obligation for the Member States to refuse uniform visas at the border when certain conditions are not fulfilled and a discretion to issue such visas when such conditions are fulfilled. Article 35(1) establishes the conditions that an applicant must satisfy to be issued with a uniform visa at the border. The terms ‘may’ and ‘in exceptional cases’ clearly suggest that the Member States retain discretion to issue uniform visas at the border when the relevant conditions are satisfied. Furthermore, the condition in Article 35(1)(b) is capable of different interpretations and the terms ‘unforeseeable and imperative reasons’ seem to establish a high threshold. On the other hand, the term ‘shall’ in Article 35(6) establishes an obligation for the Member States to refuse visas at the border for the reasons listed in Article 32(1). These reasons correspond to the entry conditions in Article 5(1)(a), (c), (d) and (e) of the Schengen Borders Code Regulation (EC) 562/2006 and further include lack of travel medical insurance. However, by virtue of Article 35(2) the requirement that an applicant be in possession of travel medical insurance may be waived for visas issued at the border when travel medical insurance is not available at that border crossing point or for humanitarian reasons. Article 35(6) establishes that a visa must also be refused at the border when the condition in Article 35(1)(b) is not met. Article 35(5) further establishes that in principle visas at the border must be refused to third country nationals belonging to a category subject to prior consultation under Article 22. 172

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Art. 36

Visa Code Regulation (EC) No 810/2009

Part B III

Accordingly, because Article 35(1) expressly confers discretion on the Member States to issue visas at the border, it is not possible to apply the Koushkaki judgment (see above Article 32 MN 3) and visa applicants will not be entitled to a visa at the border when they fulfil the relevant conditions.178 Article 35(4) and (5) provides that Member States ‘may’ issue LTV visas at the 2 border, in accordance with Article 25(1)(a) to applicants who do not fulfil the entry conditions in Article 5(1)(a), (c), (d) and (e) of the Schengen Borders Code Regulation (EC) No 562/2006 and applicants subject to prior consultation. In any case, entry of third country nationals at the external border remains subject to the relevant EU and international law as Articles 3a and 13 of the Schengen Borders Code Regulation (EC) No 562/2006 recognize (see above Epiney/Egbuna-Joss, Schengen Borders Code Regulation (EC) No 562/2006, Article 3a MN 1 et seq. and Article 13 MN 1), although, as a result of carrier sanctions, the circumstances where a third country national may be able to reach the borders of the Member States without a visa, when required to have one, will be limited. In MRAX, the ECJ held that, by virtue of what is now the Free Movement Directive 2008/34/EC, ‘read in the light of the principle of proportionality, a Member State may not send back at the border a third country national who is married to a national of a Member State and attempts to enter its territory without being in possession of a valid identity card or passport or, if necessary, a visa, where he is able to prove his identity and the conjugal ties and there is no evidence to establish that he represents a risk to the requirements of public policy, public security or public health…’.179 The Commission in its proposal to amend and recast the Regulation (see above 3 Article 1 MN 4) provides for the possibility for the Member States to set up a temporary scheme to issue visas at the external border with a view to promoting short term tourism.180

Article 36 Visas issued to seafarers in transit at the external border 1. A seafarer who is required to be in possession of a visa when crossing the external borders of the Member States may be issued with a visa for the purpose of transit at the border where: (a) he fulfils the conditions set out in Article 35(1); and (b) he is crossing the border in question in order to embark on, re-embark on or disembark from a ship on which he will work or has worked as a seafarer. 2. Before issuing a visa at the border to a seafarer in transit, the competent national authorities shall comply with the rules set out in Annex IX, Part 1, and make sure that the necessary information concerning the seafarer in question has been exchanged by means of a duly completed form for seafarers in transit, as set out in Annex IX, Part 2. 3. This Article shall apply without prejudice to Article 35(3), (4) and (5).

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ECJ, Koushkaki, C-84/12, EU:C:2013:862. ECJ, MRAX, C-459/99, EU:C:2002:461, para 62. 180 Draft Article 33, Commission Proposal, COM(2014) 164 final. 179

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Part B III Art. 39

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TITLE IV ADMINISTRATIVE MANAGEMENT AND ORGANISATION Article 37 Organisation of visa sections 1. Member States shall be responsible for organising the visa sections of their consulates. In order to prevent any decline in the level of vigilance and to protect staff from being exposed to pressure at local level, rotation schemes for staff dealing directly with applicants shall be set up, where appropriate. Particular attention shall be paid to clear work structures and a distinct allocation/division of responsibilities in relation to the taking of final decisions on applications. Access to consultation of the VIS and the SIS and other confidential information shall be restricted to a limited number of duly authorised staff. Appropriate measures shall be taken to prevent unauthorised access to such databases. 2. The storage and handling of visa stickers shall be subject to adequate security measures to avoid fraud or loss. Each consulate shall keep an account of its stock of visa stickers and register how each visa sticker has been used. 3. Member States’ consulates shall keep archives of applications. Each individual file shall contain the application form, copies of relevant supporting documents, a record of checks made and the reference number of the visa issued, in order for staff to be able to reconstruct, if need be, the background for the decision taken on the application. Individual application files shall be kept for a minimum of two years from the date of the decision on the application as referred to in Article 23(1).

Article 38 Resources for examining applications and monitoring of consulates 1. Member States shall deploy appropriate staff in sufficient numbers to carry out the tasks relating to the examining of applications, in such a way as to ensure reasonable and harmonised quality of service to the public. 2. Premises shall meet appropriate functional requirements of adequacy and allow for appropriate security measures. 3. Member States’ central authorities shall provide adequate training to both expatriate staff and locally employed staff and shall be responsible for providing them with complete, precise and up-to-date information on the relevant Community and national law. 4. Member States’ central authorities shall ensure frequent and adequate monitoring of the conduct of examination of applications and take corrective measures when deviations from the provisions of this Regulation are detected.

Article 39 Conduct of staff 1. Member States’ consulates shall ensure that applicants are received courteously. 174

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Art. 40

Visa Code Regulation (EC) No 810/2009

Part B III

2. Consular staff shall, in the performance of their duties, fully respect human dignity. Any measures taken shall be proportionate to the objectives pursued by such measures. 3. While performing their tasks, consular staff shall not discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Article 39 establishes an obligation for staff to receive visa applicants courteously and 1 respect human dignity and the principle of non-discrimination, a fundamental norm of the EU legal order.181 When the Member States rely on external service providers under Article 43, they are under an obligation to ensure that they also respect these provisions.

Article 40 Forms of cooperation 1. Each Member State shall be responsible for organising the procedures relating to applications. In principle, applications shall be lodged at a consulate of a Member State. 2. Member States shall: (a) equip their consulates and authorities responsible for issuing visas at the borders with the required material for the collection of biometric identifiers, as well as the offices of their honorary consuls, whenever they make use of them, to collect biometric identifiers in accordance with Article 42; and/or (b) cooperate with one or more other Member States, within the framework of local Schengen cooperation or by other appropriate contacts, in the form of limited representation, co-location, or a Common Application Centre in accordance with Article 41. 3. In particular circumstances or for reasons relating to the local situation, such as where: (a) the high number of applicants does not allow the collection of applications and of data to be organised in a timely manner and in decent conditions; or (b) it is not possible to ensure a good territorial coverage of the third country concerned in any other way; 3. and where the forms of cooperation referred to in paragraph 2(b) prove not to be appropriate for the Member State concerned, a Member State may, as a last resort, cooperate with an external service provider in accordance with Article 43. 4. Without prejudice to the right to call the applicant for a personal interview, as provided for in Article 21(8), the selection of a form of organisation shall not lead to the applicant being required to appear in person at more than one location in order to lodge an application. 5. Member States shall notify to the Commission how they intend to organise the procedures relating to applications in each consular location. Article 40 establishes possible forms of cooperation to ensure consular coverage by the 1 Member States. These forms of cooperation, unlike representation under Article 8, relate only to the collection of applications and biometric identifiers. Co-location and Common Application Centres are further defined in Article 41. It appears that these options 181

Articles 1 and 21 CFR.

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are hardly used by the Member States which consider representation under Article 8 and cooperation with an external service provider under Article 43 as the cheapest and easiest form of cooperation.182 Nevertheless, Article 40(3) currently provides that cooperation with external service providers is a ‘last resort’ measure. The Commission has proposed to delete this provision together with the Member States’ obligation in Article 17(5) to maintain direct access to their consulates in cases of cooperation with external service providers (see above Article 8 MN 2, Article 17 MN 2).

Article 41 Cooperation between Member States 1. Where ‘co-location’ is chosen, staff of the consulates of one or more Member States shall carry out the procedures relating to applications (including the collection of biometric identifiers) addressed to them at the consulate of another Member State and share the equipment of that Member State. The Member States concerned shall agree on the duration of and conditions for the termination of the co-location as well as the proportion of the visa fee to be received by the Member State whose consulate is being used. 2. Where ‘Common Application Centres’ are established, staff of the consulates of two or more Member States shall be pooled in one building in order for applicants to lodge applications (including biometric identifiers). Applicants shall be directed to the Member State competent for examining and deciding on the application. Member States shall agree on the duration of and conditions for the termination of such cooperation as well as the cost-sharing among the participating Member States. One Member State shall be responsible for contracts in relation to logistics and diplomatic relations with the host country. 3. In the event of termination of cooperation with other Member States, Member States shall assure the continuity of full service.

Article 42 Recourse to honorary consuls 1. Honorary consuls may also be authorised to perform some or all of the tasks referred to in Article 43(6). Adequate measures shall be taken to ensure security and data protection. 2. Where the honorary consul is not a civil servant of a Member State, the performance of those tasks shall comply with the requirements set out in Annex X, except for the provisions in point D(c) of that Annex. 3. Where the honorary consul is a civil servant of a Member State, the Member State concerned shall ensure that requirements comparable to those which would apply if the tasks were performed by its consulate are applied.

Article 43 Cooperation with external service providers 1. Member States shall endeavour to cooperate with an external service provider together with one or more Member States, without prejudice to public procurement and competition rules. 182

176

Commission Staff Working Document, SWD(2014) 101 final, p. 32.

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Art. 43

Visa Code Regulation (EC) No 810/2009

Part B III

2. Cooperation with an external service provider shall be based on a legal instrument that shall comply with the requirements set out in Annex X. 3. Member States shall, within the framework of local Schengen cooperation, exchange information about the selection of external service providers and the establishment of the terms and conditions of their respective legal instruments. 4. The examination of applications, interviews (where appropriate), the decision on applications and the printing and affixing of visa stickers shall be carried out only by the consulate. 5. External service providers shall not have access to the VIS under any circumstances. Access to the VIS shall be reserved exclusively to duly authorised staff of consulates. 6. An external service provider may be entrusted with the performance of one or more of the following tasks: (a) providing general information on visa requirements and application forms; (b) informing the applicant of the required supporting documents, on the basis of a checklist; (c) collecting data and applications (including collection of biometric identifiers) and transmitting the application to the consulate; (d) collecting the visa fee; (e) managing the appointments for appearance in person at the consulate or at the external service provider; (f) collecting the travel documents, including a refusal notification if applicable, from the consulate and returning them to the applicant. 7. When selecting an external service provider, the Member State(s) concerned shall scrutinise the solvency and reliability of the company, including the necessary licences, commercial registration, company statutes, bank contracts, and ensure that there is no conflict of interests. 8. The Member State(s) concerned shall ensure that the external service provider selected complies with the terms and conditions assigned to it in the legal instrument referred to in paragraph 2. 9. The Member State(s) concerned shall remain responsible for compliance with data protection rules for the processing of data and shall be supervised in accordance with Article 28 of Directive 95/46/EC. Cooperation with an external service provider shall not limit or exclude any liability arising under the national law of the Member State(s) concerned for breaches of obligations with regard to the personal data of applicants or the performance of one or more of the tasks referred to in paragraph 6. This provision is without prejudice to any action which may be taken directly against the external service provider under the national law of the third country concerned. 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 visa requirements and 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

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the transmission of files and data to the consulate 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) of the Member State(s) concerned shall, on a regular basis, carry out spot checks on the premises of the external service provider. 12. In the event of termination of cooperation with an external service provider, Member States shall ensure the continuity of full service. 13. Member States shall provide the Commission with a copy of the legal instrument referred to in paragraph 2.

Article 44 Encryption and secure transfer of data 1. In the case of representation arrangements between Member States and cooperation of Member States with an external service provider and recourse to honorary consuls, the represented Member State(s) or the Member State(s) concerned shall ensure that the data are fully encrypted, whether electronically transferred or physically transferred on an electronic storage medium from the authorities of the representing Member State to the authorities of the represented Member State(s) or from the external service provider or from the honorary consul to the authorities of the Member State(s) concerned. 2. In third countries which prohibit encryption of data to be electronically transferred from the authorities of the representing Member State to the authorities of the represented Member State(s) or from the external service provider or from the honorary consul to the authorities of the Member State(s) concerned, the represented Members State(s) or the Member State(s) concerned shall not allow the representing Member State or the external service provider or the honorary consul to transfer data electronically. In such a case, the represented Member State(s) or the Member State(s) concerned shall ensure that the electronic data are transferred physically in fully encrypted form on an electronic storage medium from the authorities of the representing Member State to the authorities of the represented Member State(s) or from the external service provider or from the honorary consul to the authorities of the Member State(s) concerned by a consular officer of a Member State or, where such a transfer would require disproportionate or unreasonable measures to be taken, in another safe and secure way, for example by using established operators experienced in transporting sensitive documents and data in the third country concerned. 3. In all cases the level of security for the transfer shall be adapted to the sensitive nature of the data. 4. The Member States or the Community shall endeavour to reach agreement with the third countries concerned with the aim of lifting the prohibition against encryption of data to be electronically transferred from the authorities of the representing Member State to the authorities of the represented Member State(s) or from the external service provider or from the honorary consul to the authorities of the Member State(s) concerned.

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Art. 47

Visa Code Regulation (EC) No 810/2009

Part B III

Article 45 Member States’ cooperation with commercial intermediaries 1. Member States may cooperate with commercial intermediaries for the lodging of applications, except for the collection of biometric identifiers. 2. Such cooperation shall be based on the granting of an accreditation by Member States’ relevant authorities. The accreditation shall, in particular, be based on the verification of the following aspects: (a) the current status of the commercial intermediary: current licence, the commercial register, contracts with banks; (b) existing contracts with commercial partners based in the Member States offering accommodation and other package tour services; (c) contracts with transport companies, which must include an outward journey, as well as a guaranteed and fixed return journey. 3. Accredited commercial intermediaries shall be monitored regularly by spot checks involving personal or telephone interviews with applicants, verification of trips and accommodation, verification that the travel medical insurance provided is adequate and covers individual travellers, and wherever deemed necessary, verification of the documents relating to group return. 4. Within local Schengen cooperation, information shall be exchanged on the performance of the accredited commercial intermediaries concerning irregularities detected and refusal of applications submitted by commercial intermediaries, and on detected forms of travel document fraud and failure to carry out scheduled trips. 5. Within local Schengen cooperation, lists shall be exchanged of commercial intermediaries to which accreditation has been given by each consulate and from which accreditation has been withdrawn, together with the reasons for any such withdrawal. Each consulate shall make sure that the public is informed about the list of accredited commercial intermediaries with which it cooperates.

Article 46 Compilation of statistics Member States shall compile annual statistics on visas, in accordance with the table set out in Annex XII. These statistics shall be submitted by 1 March for the preceding calendar year.

Article 47 Information to the general public 1. Member States’ central authorities and consulates shall provide the general public with all relevant information in relation to the application for a visa, in particular: (a) the criteria, conditions and procedures for applying for a visa; (b) the means of obtaining an appointment, if applicable; (c) where the application may be submitted (competent consulate, Common Application Centre or external service provider); Meloni

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Part B III Art. 48

Entry and Border Controls

(d) accredited commercial intermediaries; (e) the fact that the stamp as provided for in Article 20 has no legal implications; (f) the time limits for examining applications provided for in Article 23(1), (2) and (3); (g) the third countries whose nationals or specific categories of whose nationals are subject to prior consultation or information; (h) that negative decisions on applications must be notified to the applicant, that such decisions must state the reasons on which they are based and that applicants whose applications are refused have a right to appeal, with information regarding the procedure to be followed in the event of an appeal, including the competent authority, as well as the time limit for lodging an appeal; (i) that mere possession of a visa does not confer an automatic right of entry and that the holders of visa are requested to present proof that they fulfil the entry conditions at the external border, as provided for in Article 5 of the Schengen Borders Code. 2. The representing and represented Member State shall inform the general public about representation arrangements as referred to in Article 8 before such arrangements enter into force.

TITLE V LOCAL SCHENGEN COOPERATION Article 48 Local Schengen cooperation between Member States’ consulates 1. In order to ensure a harmonised application of the common visa policy taking into account, where appropriate, local circumstances, Member States’ consulates and the Commission shall cooperate within each jurisdiction and assess the need to establish in particular: (a) a harmonised list of supporting documents to be submitted by applicants, taking into account Article 14 and Annex II; (b) common criteria for examining applications in relation to exemptions from paying the visa fee in accordance with Article 16(5) and matters relating to the translation of the application form in accordance with Article 11(5); (c) an exhaustive list of travel documents issued by the host country, which shall be updated regularly. If in relation to one or more of the points (a) to (c), the assessment within local Schengen cooperation confirms the need for a local harmonised approach, measures on such an approach shall be adopted pursuant to the procedure referred to in Article 52(2). 2. Within local Schengen cooperation a common information sheet shall be established on uniform visas and visas with limited territorial validity and airport transit visas, namely, the rights that the visa implies and the conditions for applying for it, including, where applicable, the list of supporting documents as referred to in paragraph 1(a). 3. The following information shall be exchanged within local Schengen cooperation: (a) monthly statistics on uniform visas, visas with limited territorial validity, and airport transit visas issued, as well as the number of visas refused; 180

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Art. 51

Visa Code Regulation (EC) No 810/2009

Part B III

(b) with regard to the assessment of migratory and/or security risks, information on: (i) the socioeconomic 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) illegal immigration routes; (v) refusals; (c) information on cooperation with transport companies; (d) information on insurance companies providing adequate travel medical insurance, including verification of the type of coverage and possible excess amount. 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. On the basis of these reports, the Commission shall draw up an annual report within each jurisdiction to be submitted to the European Parliament and the Council. 6. Representatives of the consulates of Member States not applying the Community acquis 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. Article 48(1) establishes that local Schengen cooperation and the Commission may 1 assess the need for a common approach in relation to supporting documents, exemptions from the visa fee, translation of the application forms and the list of travel documents issued by the host country. Measures in these fields will be adopted according to the ‘regulatory procedure’ as envisaged in Article 52. The Commission reports however that progress on harmonized lists of supporting documents has been limited (see above Article 14 MN 1).

TITLE VI FINAL PROVISIONS Article 49 Arrangements in relation to the Olympic Games and Paralympic Games Member States hosting the Olympic Games and Paralympic Games shall apply the specific procedures and conditions facilitating the issuing of visas set out in Annex XI.

Article 51 Instructions on the practical application of the Visa Code Operational instructions on the practical application of the provisions of this Regulation shall be drawn up in accordance with the procedure referred to in Article 52(2). Meloni

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Part B III Art. 53

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Article 52 Committee procedure 1. The Commission shall be assisted by a committee (the Visa Committee). 2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/ 468/EC shall apply, having regard to the provisions of Article 8 thereof and provided that the implementing measures adopted in accordance with this procedure do not modify the essential provisions of this Regulation. The period laid down in Article 5(6) of Decision 1999/468/EC shall be three months. 3. Where reference is made to this paragraph, Articles 5a(1) to (4) and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof. 1

Article 50 governs amendments to non-essential elements of the Regulation and amendments to 9 of the 12 Annexes to the Regulation. These amendments are to be adopted as implementing acts under the ‘regulatory procedure with scrutiny’ referred to in Article 52(3). This procedure has been applied once. Article 51 provides that operational instructions on the practical application of the Regulation are to be adopted as implementing acts according to the ‘regulatory procedure’ referred in Article 52(2). Following the adoption of Regulation (EU) No 182/2011, on rules and general principles for control of the Commission’s exercise of implementing powers,183 the Commission has proposed to amend these provisions. In accordance with Article 290 TFEU, the ‘delegated acts’ procedure applies in respect of the list of third countries whose nationals require ATVs and the list of residence permits exempting the holder from the ATV requirement. Operational instructions on the practical application of the provisions of the Regulation are to be adopted in accordance with the ‘examination procedure’. Moreover, the Commission will adopt, in accordance with the ‘examination procedure’ implementing acts establishing the list of supporting documents to be used in each jurisdiction, details for filling in and affixing visa stickers and rules on issuing visas to seafarers at the borders.184

Article 53 Notification 1. Member States shall notify the Commission of: (a) representation arrangements referred to in Article 8; (b) third countries whose nationals are required by individual Member States to hold an airport transit visa when passing through the international transit areas of airports situated on their territory, as referred to in Article 3; (c) the national form for proof of sponsorship and/or private accommodation referred to in Article 14(4), if applicable; (d) the list of third countries for which prior consultation referred to in Article 22(1) is required; (e) the list of third countries for which information referred to in Article 31(1) is required; 183 184

182

OJ 2011 L 55/13. Draft Articles 48–51, Commission Proposal, COM(2014) 164 final.

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Art. 54

Visa Code Regulation (EC) No 810/2009

Part B III

(f) the additional national entries in the ‘comments’ section of the visa sticker, as referred to in Article 27(2); (g) authorities competent for extending visas, as referred to in Article 33(5); (h) the forms of cooperation chosen as referred to in Article 40; (i) statistics compiled in accordance with Article 46 and Annex XII. 2. The Commission shall make the information notified pursuant to paragraph 1 available to the Member States and the public via a constantly updated electronic publication.

Article 54 Amendments to Regulation (EC) No 767/2008 Regulation (EC) No 767/2008 is hereby amended as follows: 1. Article 4(1) shall be amended as follows: (a) point (a) shall be replaced by the following: ‘(a) “uniform visa” as defined in Article 2(3) of 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)(22); (b) point (b) shall be deleted; (c) point (c) shall be replaced by the following: ‘(c) “airport transit visa” as defined in Article 2(5) of Regulation (EC) No 810/ 2009’; (d) point (d) shall be replaced by the following: ‘(d) “visa with limited territorial validity” as defined in Article 2(4) of Regulation (EC) No 810/2009’; (e) point (e) shall be deleted; 2. in Article 8(1), the words ‘On receipt of an application’, shall be replaced by the following: ‘When the application is admissible according to Article 19 of Regulation (EC) No 810/2009’; 3. Article 9 shall be amended as follows: (a) the heading shall be replaced by the following: ‘Data to be entered on application’; (b) paragraph 4 shall be amended as follows: (i) point (a) shall be replaced by the following: ‘(a) surname (family name), surname at birth (former family name(s)), first name(s) (given name(s)); date of birth, place of birth, country of birth, sex;’; (ii) point (e) shall be deleted; (iii) point (g) shall be replaced by the following: ‘(g) Member State(s) of destination and duration of the intended stay or transit;’; (iv) point (h) shall be replaced by the following: ‘(h) main purpose(s) of the journey;’; (v) point (i) shall be replaced by the following: ‘(i) intended date of arrival in the Schengen area and intended date of departure from the Schengen area;’; (22)

OJ L 243, 15.9.2009, p. 1.

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Part B III Art. 54

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(vi)

point (j) shall be replaced by the following: ‘(j) Member State of first entry;’; (vii) point (k) shall be replaced by the following: ‘(k) the applicant’s home address;’; (viii) in point (l), the word ‘school’ shall be replaced by: ‘educational establishment’; (ix) in point (m), the words ‘father and mother’ shall be replaced by ‘parental authority or legal guardian’; 4. the following point shall be added to Article 10(1): ‘(k) if applicable, the information indicating that the visa sticker has been filled in manually.’; 5. in Article 11, the introductory paragraph shall be replaced by the following: ‘Where the visa authority representing another Member State discontinues the examination of the application, it shall add the following data to the application file:’; 6. Article 12 shall be amended as follows: (a) in paragraph 1, point (a) shall be replaced by the following: ‘(a) status information indicating that the visa has been refused and whether that authority refused it on behalf of another Member State;’; (b) paragraph 2 shall be replaced by the following: ‘2. The application file shall also indicate the ground(s) for refusal of the visa, which shall be one or more of the following: (a) the applicant: (i) presents a travel document which is false, counterfeit or forged; (ii) does not provide justification for the purpose and conditions of the intended stay; (iii) does not provide proof of sufficient means of subsistence, both for the duration of the intended stay and for the return to his country of origin or residence, or for the transit to a third country into which he is certain to be admitted, or is not in a position to acquire such means lawfully; (iv) has already stayed for three months during the current six-month period on the territory of the Member States on a basis of a uniform visa or a visa with limited territorial validity; (v) is a person for whom an alert has been issued in the SIS for the purpose of refusing entry; (vi) is considered to be a threat to public policy, internal security or public health as defined in Article 2(19) of the Schengen Borders Code or to the international relations of any of the Member States, in particular where an alert has been issued in Member States’ national databases for the purpose of refusing entry on the same grounds; (vii) does not provide proof of holding adequate and valid travel medical insurance, where applicable; (b) the information submitted regarding the justification for the purpose and conditions of the intended stay was not reliable; (c) the applicant’s intention to leave the territory of the Member States before the expiry of the visa could not be ascertained; (d) sufficient proof that the applicant has not been in a position to apply for a visa in advance justifying application for a visa at the border was not provided.’; 7. Article 13 shall be replaced by the following: ‘Article 13 Data to be added for a visa annulled or revoked 184

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Art. 55

Visa Code Regulation (EC) No 810/2009

Part B III

1. Where a decision has been taken to annul or to revoke a visa, the visa authority that has taken the decision shall add the following data to the application file: (a) status information indicating that the visa has been annulled or revoked; (b) authority that annulled or revoked the visa, including its location; (c) place and date of the decision. 2. The application file shall also indicate the ground(s) for annulment or revocation, which shall be: (a) one or more of the ground(s) listed in Article 12(2); (b) the request of the visa holder to revoke the visa.’; 8. Article 14 shall be amended as follows: (a) paragraph 1 shall be amended as follows: (i) the introductory paragraph shall be replaced by the following: ‘1. Where a decision has been taken to extend the period of validity and/or the duration of stay of an issued visa, the visa authority which extended the visa shall add the following data to the application file:’; (ii) point (d) shall be replaced by the following: ‘(d) the number of the visa sticker of the extended visa;’; (iii) point (g) shall be replaced by the following: ‘(g) the territory in which the visa holder is entitled to travel, if the territorial validity of the extended visa differs from that of the original visa;’; (b) in paragraph 2, point (c) shall be deleted; 9. in Article 15(1), the words ‘extend or shorten the validity of the visa’ shall be replaced by ‘or extend the visa’; 10. Article 17 shall be amended as follows: (a) point 4 shall be replaced by the following: ‘4. Member State of first entry;’; (b) point 6 shall be replaced by the following: ‘6. the type of visa issued;’; (c) point 11 shall be replaced by the following: ‘11. main purpose(s) of the journey;’; 11. in Article 18(4)(c), Article 19(2)(c), Article 20(2)(d), Article 22(2)(d), the words ‘or shortened’ shall be deleted; 12. in Article 23(1)(d), the word ‘shortened’ shall be deleted.

Article 55 Amendments to Regulation (EC) No 562/2006 Annex V, Part A of Regulation (EC) No 562/2006 is hereby amended as follows: (a) point 1(c), shall be replaced by the following: ‘(c) annul or revoke the visas, as appropriate, in accordance with the conditions laid down in Article 34 of 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)(23); (b) point 2 shall be deleted.

(23)

OJ L 243, 15.9.2009, p. 1.

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Part B III Art. 57

Entry and Border Controls

Article 56 Repeals 1. Articles 9 to 17 of the Convention implementing the Schengen Agreement of 14 June 1985 shall be repealed. 2. The following shall be repealed: (a) Decision of the Schengen Executive Committee of 28 April 1999 on the definitive versions of the Common Manual and the Common Consular Instructions (SCH/ Com-ex (99) 13 (the Common Consular Instructions, including the Annexes); (b) Decisions of the Schengen Executive Committee of 14 December 1993 extending the uniform visa (SCH/Com-ex (93) 21) and on the common principles for cancelling, rescinding or shortening the length of validity of the uniform visa (SCH/Com-ex (93) 24), Decision of the Schengen Executive Committee of 22 December 1994 on the exchange of statistical information on the issuing of uniform visas (SCH/Com-ex (94) 25), Decision of the Schengen Executive Committee of 21 April 1998 on the exchange of statistics on issued visas (SCH/ Com-ex (98) 12) and Decision of the Schengen Executive Committee of 16 December 1998 on the introduction of a harmonised form providing proof of invitation, sponsorship and accommodation (SCH/Com-ex (98) 57); (c) Joint Action 96/197/JHA of 4 March 1996 on airport transit arrangements(24); (d) Council Regulation (EC) No 789/2001 of 24 April 2001 reserving to the Council implementing powers with regard to certain detailed provisions and practical procedures for examining visa applications(25); (e) Council Regulation (EC) No 1091/2001 of 28 May 2001 on freedom of movement with a long-stay visa(26); (f) Council Regulation (EC) No 415/2003 of 27 February 2003 on the issue of visas at the border, including the issue of such visas to seamen in transit(27); (g) Article 2 of Regulation (EC) No 390/2009 of the European Parliament and of the Council of 23 April 2009 amending the Common Consular Instructions on visas for diplomatic and consular posts in relation to the introduction of biometrics including provisions on the organisation of the reception and processing of visa applications(28). 3. References to repealed instruments shall be construed as references to this Regulation and read in accordance with the correlation table in Annex XIII.

Article 57 Monitoring and evaluation 1. Two years after all the provisions of this Regulation have become applicable, the Commission shall produce an evaluation of its application. This overall evaluation shall include an examination of the results achieved against objectives and of the implementation of the provisions of this Regulation, without prejudice to the reports referred to in paragraph 3. (24)

OJ OJ (26) OJ (27) OJ (28) OJ (25)

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Art. 58

Visa Code Regulation (EC) No 810/2009

Part B III

2. The Commission shall transmit the evaluation referred to in paragraph 1 to the European Parliament and the Council. On the basis of the evaluation, the Commission shall submit, if necessary, appropriate proposals with a view to amending this Regulation. 3. The Commission shall present, three years after the VIS is brought into operation and every four years thereafter, a report to the European Parliament and to the Council on the implementation of Articles 13, 17, 40 to 44 of this Regulation, including the implementation of the collection and use of biometric identifiers, the suitability of the ICAO standard chosen, compliance with data protection rules, experience with external service providers with specific reference to the collection of biometric data, the implementation of the 59-month rule for the copying of fingerprints and the organisation of the procedures relating to applications. The report shall also include, on the basis of Article 17(12), (13) and (14) and of Article 50(4) of the VIS Regulation, the cases in which fingerprints could factually not be provided or were not required to be provided for legal reasons, compared with the number of cases in which fingerprints were taken. The report shall include information on cases in which a person who could factually not provide fingerprints was refused a visa. The report shall be accompanied, where necessary, by appropriate proposals to amend this Regulation. 4. The first of the reports referred to in paragraph 3 shall also address the issue of the sufficient reliability for identification and verification purposes of fingerprints of children under the age of 12 and, in particular, how fingerprints evolve with age, on the basis of the results of a study carried out under the responsibility of the Commission.

Article 58 Entry into force 1. This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union. 2. It shall apply from 5 April 2010. 3. Article 52 and Article 53(1)(a) to (h) and (2) shall apply from 5 October 2009. 4. As far as the Schengen Consultation Network (Technical Specifications) is concerned, Article 56(2)(d) shall apply from the date referred to in Article 46 of the VIS Regulation. 5. Article 32(2) and (3), Article 34(6) and (7) and Article 35(7) shall apply from 5 April 2011. This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaty establishing the European Community.

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Part B III Annex I

Entry and Border Controls

ANNEX I

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Annex I

Visa Code Regulation (EC) No 810/2009

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Part B III Annex II

Entry and Border Controls

ANNEX II Non-exhaustive list of supporting documents The supporting documents referred to in Article 14, to be submitted by visa applicants may include the following: A. DOCUMENTATION RELATING TO THE PURPOSE OF THE JOURNEY 1. for business trips:

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Annex II

Visa Code Regulation (EC) No 810/2009

Part B III

(a) an invitation from a firm or an authority to attend meetings, conferences or events connected with trade, industry or work; (b) other documents which show the existence of trade relations or relations for work purposes; (c) entry tickets for fairs and congresses, if appropriate; (d) documents proving the business activities of the company; (e) documents proving the applicant’s employment status in the company; 2. for journeys undertaken for the purposes of study or other types of training: (a) a certificate of enrolment at an educational establishment for the purposes of attending vocational or theoretical courses within the framework of basic and further training; (b) student cards or certificates of the courses to be attended; 3. for journeys undertaken for the purposes of tourism or for private reasons: (a) documents relating to accommodation: – an invitation from the host if staying with one, – a document from the establishment providing accommodation or any other appropriate document indicating the accommodation envisaged; (b) documents relating to the itinerary: – confirmation of the booking of an organised trip or any other appropriate document indicating the envisaged travel plans, – in the case of transit: visa or other entry permit for the third country of destination; tickets for onward journey; 4. for journeys undertaken for political, scientific, cultural, sports or religious events or other reasons: – invitation, entry tickets, enrolments or programmes stating (wherever possible) the name of the host organisation and the length of stay or any other appropriate document indicating the purpose of the journey; 5. for journeys of members of official delegations who, following an official invitation addressed to the government of the third country concerned, participate in meetings, consultations, negotiations or exchange programmes, as well as in events held in the territory of a Member State by intergovernmental organisations: – a letter issued by an authority of the third country concerned confirming that the applicant is a member of the official delegation travelling to a Member State to participate in the abovementioned events, accompanied by a copy of the official invitation; 6. for journeys undertaken for medical reasons: – an official document of the medical institution confirming necessity for medical care in that institution and proof of sufficient financial means to pay for the medical treatment. B. DOCUMENTATION ALLOWING FOR THE ASSESSMENT OF THE APPLICANT’S INTENTION TO LEAVE THE TERRITORY OF THE MEMBER STATES 1. reservation of or return or round ticket; 2. proof of financial means in the country of residence; 3. proof of employment: bank statements; 4. proof of real estate property; 5. proof of integration into the country of residence: family ties; professional status. C. DOCUMENTATION IN RELATION TO THE APPLICANT’S FAMILY SITUATION 1. consent of parental authority or legal guardian (when a minor does not travel with them); 2. proof of family ties with the host/inviting person. Meloni

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Part B III Annex VI

Entry and Border Controls

ANNEX III UNIFORM FORMAT AND USE OF THE STAMP INDICATING THAT A VISA APPLICATION IS ADMISSIBLE Not reprinted here

ANNEX IV Common list of third countries listed in Annex I to Regulation (EC) No 539/2001, whose nationals are required to be in possession of an airport transit visa when passing through the international transit area of airports situated on the territory of the Member States AFGHANISTAN BANGLADESH DEMOCRATIC REPUBLIC OF THE CONGO ERITREA ETHIOPIA GHANA IRAN IRAQ NIGERIA PAKISTAN SOMALIA SRI LANKA

ANNEX V LIST OF RESIDENCE PERMITS ENTITLING THEIR HOLDERS TO TRANSIT THROUGH THE AIRPORTS OF MEMBER STATES WITHOUT BEING REQUIRED TO HOLD AN AIRPORT TRANSIT VISA Not reprinted here

ANNEX VI STANDARD FORM FOR NOTIFYING AND MOTIVATING REFUSAL, ANNULMENT OR REVOCATION OF A VISA (1) REFUSAL/ANNULMENT/REVOCATION OF VISA Ms/Mr, The Embassy/Consulate-General/Consulate/[other competent authority] in [on behalf of (name of represented Member State)]; [Other competent authority] of The authorities responsible for checks on persons at has/have

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Annex VI

Visa Code Regulation (EC) No 810/2009

Part B III

examined your visa application; examined your visa, number:, issued: [day/month/year]. The visa has been refused The visa has been annulled The visa has been revoked This decision is based on the following reason(s): 1. a false/counterfeit/forged travel document was presented 2. justification for the purpose and conditions of the intended stay was not provided 3. 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, or you are not in a position to acquire such means lawfully 4. you have already stayed for three months during the current six-month period on the territory of the Member States on the basis of a uniform visa or a visa with limited territorial validity 5. an alert has been issued in the Schengen Information System (SIS) for the purpose of refusing entry by (indication of Member State) 6. one or more Member State(s) consider you to be a threat to public policy, internal security, public health as defined in Article 2(19) of Regulation (EC) No 562/ 2006 (Schengen Borders Code) or the international relations of one or more of the Member States) 7. proof of holding an adequate and valid travel medical insurance was not provided 8. the information submitted regarding the justification for the purpose and conditions of the intended stay was not reliable 9. your intention to leave the territory of the Member States before the expiry of the visa could not be ascertained (1) No logo is required for Norway, Iceland and Switzerland.

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Part B III Annex XIII

Entry and Border Controls

ANNEX VII FILLING IN THE VISA STICKER ANNEX VIII AFFIXING THE VISA STICKER ANNEX IX ANNEX X LIST OF MINIMUM REQUIREMENTS TO BE INCLUDED IN THE LEGAL INSTRUMENT IN THE CASE OF COOPERATION WITH EXTERNAL SERVICE PROVIDERS ANNEX XI SPECIFIC PROCEDURES AND CONDITIONS FACILITATING THE ISSUING OF VISAS TO MEMBERS OF THE OLYMPIC FAMILY PARTICIPATING IN THE OLYMPIC GAMES AND PARALYMPIC GAMES ANNEX XII ANNUAL STATISTICS ON UNIFORM VISAS, VISAS WITH LIMITED TERRITORIAL VALIDITY AND AIRPORT TRANSIT VISAS ANNEX XIII CORRELATION TABLE Not reprinted here.

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IV. 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 Official Journal L 349, 25/11/2004, p. 1–11. Selected Bibliography: Baldaccini, ‘Extraterritorial Border Controls in the EU: The Role of Frontex in Operations at Sea’ in: Ryan/Mitsilegas (eds), Extraterritorial Immigration Control: Legal Challenges (Martinus Nijhoff, 2010); Mitisilegas, ‘Border Security in the European Union: Towards Centralized Controls and Maximum Surveillance’, in: Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice: EU Immigration and Asylum Law and Policy (Hart, 2007); Mungianu, ‘Frontex: Towards a Common Policy on External Border Control’ EJML 15 (2013), p. 359–385; Neal, ‘Securitization and Risk at the EU Border: The Origins of Frontex’, JCMS 47 (2009), p. 333–356; Peers/Guild/Tomkin (eds), EU Immigration and Asylum Law (Text and Commentary) Vol 1: Visas and Border Controls (Martinus Nijhoff, 2012); Trevisanut, ‘Which Borders for the EU Immigration Policy? Yardsticks of International Protection for EU Joint Borders Management’ in: Azoulai/de Vries (eds), EU Migration Law: Legal Complexities and Political Rationales (OUP, 2014), p. 106.

THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Articles 62(2)(a) and 66 thereof, Having regard to the proposal from the Commission, Having regard to the opinion of the European Parliament(1), Having regard to the opinion of the European Economic and Social Committee(2), Whereas: (1) Community policy in the field of the EU external borders aims at an integrated management ensuring a uniform and high level of control and surveillance, which is a necessary corollary to the free movement of persons within the European Union and a fundamental component of an area of freedom, security and justice. To this end, the establishment of common rules on standards and procedures for the control of external borders is foreseen. (2) The efficient implementation of the common rules calls for increased coordination of the operational cooperation between the Member States. (3) Taking into account the experiences of the External Borders Practitioners’ Common Unit, acting within the Council, a specialised expert body tasked with improving the coordination of operational cooperation between Member States in the field of external border management should therefore be established in the shape of a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (hereinafter referred to as the Agency). (4) The responsibility for the control and surveillance of external borders lies with the Member States. The Agency should facilitate the application of existing and future Community measures relating to the management of external borders by ensuring the coordination of Member States’ actions in the implementation of those measures. (1) (2)

Opinion of 9 March 2004 (not yet published in the Official Journal). OJ C 108, 30.4.2004, p. 97.

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(5) Effective control and surveillance of external borders is a matter of the utmost importance to Member States regardless of their geographical position. Accordingly, there is a need for promoting solidarity between Member States in the field of external border management. The establishment of the Agency, assisting Member States with implementing the operational aspects of external border management, including return of third-country nationals illegally present in the Member States, constitutes an important step in this direction. (6) Based on a common integrated risk analysis model, the Agency should carry out risk analyses in order to provide the Community and the Member States with adequate information to allow for appropriate measures to be taken or to tackle identified threats and risks with a view to improving the integrated management of external borders. (7) The Agency should provide training at European level for national instructors of border guards and additional training and seminars related to control and surveillance at external borders and removal of third-country nationals illegally present in the Member States for officers of the competent national services. The Agency may organise training activities in cooperation with Member States on their territory. (8) The Agency should follow up on the developments in scientific research relevant for its field and disseminate this information to the Commission and to the Member States. (9) The Agency should manage lists of technical equipment provided by the Member States, thereby contributing to the ‘pooling’ of material resources. (10) The Agency should also support Member States in circumstances requiring increased technical and operational assistance at external borders. (11) In most Member States, the operational aspects of return of third-country nationals illegally present in the Member States fall within the competencies of the authorities responsible for controlling external borders. As there is a clear added value in performing these tasks at European level, the Agency should, subject to the Community return policy, accordingly provide the necessary assistance for organising joint return operations of Member States and identify best practices on the acquisition of travel documents and the removal of third-country nationals illegally present in the territories of the Member States. (12) For the purpose of fulfilling its mission and to the extent required for the accomplishment of its tasks, the Agency may cooperate with Europol, the competent authorities of third countries and the international organisations competent in matters covered by this Regulation in the framework of working arrangements concluded in accordance with the relevant provisions of the Treaty. The Agency should facilitate the operational cooperation between Member States and third countries in the framework of the external relations policy of the European Union. (13) Building upon the experiences of the External Borders Practitioners’ Common Unit and the operational and training centres specialised in the different aspects of control and surveillance of land, air and maritime borders respectively, which have been set up by Member States, the Agency may itself create specialised branches responsible for dealing with land, air and maritime borders. (14) The Agency should be independent as regards technical matters and have legal, administrative and financial autonomy. To that end, it is necessary and appropriate that it should be a Community body having legal personality and exercising the implementing powers, which are conferred upon it by this Regulation.

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Part B IV

Frontex Regulation (EC) No 2007/2004

(15) The Commission and the Member States should be represented within a Management Board in order to control effectively the functions of the Agency. The Board should, where possible, consist of the operational heads of the national services responsible for border guard management or their representatives. This Board should be entrusted with the necessary powers to establish the budget, verify its execution, adopt the appropriate financial rules, establish transparent working procedures for decision making by the Agency and appoint the Executive Director and his/her deputy. (16) In order to guarantee the full autonomy and independence of the Agency, it should be granted an autonomous budget whose revenue comes essentially from a contribution from the Community. The Community budgetary procedure should be applicable as far as the Community contribution and any other subsidies chargeable to the general budget of the European Union are concerned. The auditing of accounts should be undertaken by the Court of Auditors. (17) Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF)(3) should apply without restriction to the Agency, which should accede to the Interinstitutional Agreement of 25 May 1999 between the European Parliament, the Council of the European Union and the Commission of the European Communities concerning internal investigations by the European Anti-Fraud Office (OLAF)(4). (18) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(5) should apply to the Agency. (19) Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data(6) applies to the processing of personal data by the Agency. (20) The development of the policy and legislation on external border control and surveillance remains a responsibility of the EU institutions, in particular the Council. Close coordination between the Agency and these institutions should be guaranteed. (21) Since the objectives of this Regulation, namely the need for creating an integrated management of operational cooperation at the external borders of the Member States of the European Union, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives. (22) This Regulation respects the fundamental rights and observes the principles recognised by Article 6(2) of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union. (23) As regards Iceland and Norway, this Regulation constitutes a development of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis, which fall within the area referred to in (3)

OJ OJ (5) OJ (6) OJ (4)

L 136, 31.5.1999, p. 1. L 136, 31.5.1999, p. 15. L 145, 31.5.2001, p. 43. L 8, 12.1.2001, p. 1.

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Entry and Border Controls

Article 1, point A of Council Decision 1999/437/EC(7) on certain arrangements for the application of that Agreement. Consequently, delegations of the Republic of Iceland and the Kingdom of Norway should participate as members of the Management Board of the Agency, albeit with limited voting rights. In order to determine the further modalities allowing for the full participation of the Republic of Iceland and the Kingdom of Norway in the activities of the Agency, a further arrangement should be concluded between the Community and these States. (24) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Regulation and is not bound by it, or subject to its application. Given that this Regulation builds upon the Schengen acquis under the provisions of Title IV of Part Three of the Treaty establishing the European Community, Denmark should, in accordance with Article 5 of the said Protocol, decide within a period of six months after the Council has adopted this Regulation whether it will implement it in its national law or not. (25) This Regulation constitutes a development of provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis(8). The United Kingdom is therefore not taking part in its adoption and is not bound by it or subject to its application. (26) This Regulation constitutes a development of provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis(9). Ireland is therefore not taking part in its adoption and is not bound by it or subject to its application. (27) The Agency should facilitate the organisation of operational actions in which the Member States may avail themselves of the expertise and facilities which Ireland and the United Kingdom may be willing to offer, in accordance with modalities to be decided on a case-by-case basis by the Management Board. To that end, representatives of Ireland and the United Kingdom should be invited to attend all the meetings of the Management Board in order to allow them to participate fully in the deliberations for the preparation of such operational actions. (28) A controversy exists between the Kingdom of Spain and the United Kingdom on the demarcation of the borders of Gibraltar. (29) The suspension of the applicability of this Regulation to the borders of Gibraltar does not imply any change in the respective positions of the States concerned, HAS ADOPTED THIS REGULATION:

(7)

OJ L 176, 10.7.1999, p. 31. OJ L 131, 1.6.2000, p. 43. (9) OJ L 64, 7.3.2002, p. 20. (8)

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Art. 1

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CHAPTER I SUBJECT MATTER Article 1 Establishment of the Agency 1. A European Agency for the Management of Operational Cooperation at the External Borders (the Agency) is hereby established with a view to improving the integrated management of the external borders of the Member States of the European Union. 2. While considering that the responsibility for the control and surveillance of external borders lies with the Member States, the Agency, as a body of the Union as defined in Article 15 and in accordance with Article 19 of this Regulation, shall facilitate and render more effective the application of existing and future Union measures relating to the management of external borders, in particular the Schengen Borders Code established by Regulation (EC) No 562/2006(10). It shall do so by ensuring the coordination of the actions of the Member States in the implementation of those measures, thereby contributing to an efficient, high and uniform level of control on persons and of surveillance of the external borders of the Member States. The Agency shall fulfil its tasks in full compliance with the relevant Union law, including the Charter of Fundamental Rights of the European Union (‘the Charter of Fundamental Rights’); the relevant international law, including the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 (‘the Geneva Convention’); obligations related to access to international protection, in particular the principle of non-refoulement; and fundamental rights, and taking into account the reports of the Consultative Forum referred to in Article 26a of this Regulation. 3. The Agency shall also provide the Commission and the Member States with the necessary technical support and expertise in the management of the external borders and promote solidarity between Member States, especially those facing specific and disproportionate pressures. Content I. II. III. IV.

General Remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Legislative History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Textual analysis: Mandate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Textual analysis: Fundamental rights and related obligations . . . . . . . . . . . . . 16

I. General Remarks Regulation 2007/2004 established an agency of the European Union concerned with 1 operational co-operation at the EU and Schengen external border. The agency is generally known as ‘Frontex’, in an abbreviation of the French term ‘frontie`res exte´rieures’.1 By virtue of Council Decision 2005/358/EC of 26 April 2005 (OJ 2005 L 114/13) its seat is in Warsaw. It came into existence on 1 May 2005, and commenced operations on (10) Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ L 105, 13.4.2006, p. 1). 1 Peers/Guild/Tomkin, EU Immigration and Asylum Law, p. 119.

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3 October 2005. In practice, Frontex is mainly concerned with addressing immigration control pressure points at the Schengen external border. The creation of Frontex reflects the concern of Member States and of the EU to ensure effective external border controls, and solidarity in such control, in a context of open internal borders within the Schengen zone.2 Its actual emergence in the first half of the 2000s has been linked to the enlargement of the EU, and to internal security and anti-terrorism policy.3 Its formal origins lie in a request by the Laeken European Council of 14/15 December 2001 to the Council and Commission to examine ‘arrangements for cooperation between services responsible for external border control’ and ‘a mechanism or common services to control external borders.’4 That was followed by a Commission Communication on 7 May 2002, which inter alia recommended the establishment of an ‘external borders practitioners common unit’.5 That proposal would eventually be taken up through the establishment of Frontex.6 Since 2005, there has been recurrent discussion of whether Frontex’s systems are adequate to ensure respect for fundamental rights.7 As we shall see in this Chapter, that concern led to various amendments to the Frontex Regulation in 2011. Doubts about the protection of fundamental have nevertheless remained. In particular, there have subsequently been two relevant own-initiative inquiries by the European Ombudsman, concerned with the overall protection of fundamental rights by Frontex (2012–2013), and with joint return operations (2014-).8 Operations at sea have posed especially difficult questions for Frontex. Amendments to the Frontex Regulation in 2011 sought to clarify that it can engage in such operations, while a Decision in 2010 and a Regulation in 2014 have confirmed that such operations can lead to search and rescue. It remains the case however that Frontex’s mandate is primarily concerned with external border control, and not humanitarian goals. This limitation has come under scrutiny especially as a result of the tragedies of 13 and 19 April 2015, when an estimated 400 and 800 persons drowned in separate incidents in the Central Mediterranean. Against this background, a reform of Frontex’s governing legislation to permit a greater humanitarian role at sea cannot be ruled out. Another future question concerning Frontex concerns the possibility of the EU having its own border guards. In 2002, the Commission proposed a ‘European Corps of Border Guards’.9 That idea was not however taken up by the Member States, who preferred operational co-operation.10 In 2014, a Commission-funded study proposed a different 2

Neal, JCMS 47 (2009). Mitsilegas, in Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice, p. 363–365 and Trevisanut, in Azoulai/de Vries (eds), EU Migration Law, p. 106–109, respectively. 4 Presidency Conclusions, European Council Meeting in Laeken, 14–15 December 2001 (SN 300/1/01 Rev 1), para 42. 5 Towards Integrated Management of the External Borders of the Member States of the European Union, Commission Communication COM(2002) 233 final, especially paras 28–44. 6 On the background to the 2004 Regulation, see Neal, JCMS 47 (2009), p. 338–346 and Baldaccini, in Ryan/Mitsilegas (eds), Extraterritorial Immigration Control, p. 230–232. 7 See generally Baldaccini, in Ryan/Mitsilegas (eds), Extraterritorial Immigration Control; Guild/ Carrera/den Hertog/Parkin, Implementation of the EU Charter of Fundamental Rights and its Impact on EU Home Affairs Agencies (European Parliament, 2011), p. 57–64; Carrera/den Hertog/Parkin, ‘The Peculiar Nature of EU Home Affairs Agencies in Migration Control: Beyond Accountability versus Autonomy?’, EJML 15 (2013), p. 337–358. 8 Inquiry OI/5/2012/BEH-MHZ was opened on 6 March 2012, and concerned the protection of fundamental rights by Frontex overall. It led to a negative decision concerning the lack of a complaint mechanism on 12 November 2013. Inquiry OI/9/2014/MH was opened on 20 October 2014, and concerns respect for fundamental rights in joint return operations. 9 COM(2002) 233 final, paras 45–51. 10 See the sources cited in note 6, above. 3

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model, whereby member states would retain responsibility for the external border in routine contexts, with Frontex and a European Borders Corps potentially taking executive responsibility in so-called ‘hot spot situations’.11 Any such development would entail a fundamental change in Frontex’s role, relative to the current arrangements.

II. Legislative History The Commission proposal which led to the original Frontex Regulation was published on 20 November 2003.12 That proposal was based on Article 66 TEC, which permitted measures ‘to ensure cooperation’ both between member state administrations, and between them and the Commission. The eventual 2004 Frontex Regulation was also based on Article 62(2)(a) TEC, which permitted measures on the standards and procedures to be followed by Member States in external border checks.13 The legislative procedure involved consultation of the Parliament, with the negotiation and adoption of the Regulation by the Council of Ministers. A first set of amendments to the Frontex Regulation were made as part of Regulation 863/2007/EC of 11 July 2007 concerning rapid border intervention teams (known as ‘RABITs’).14 The broad purpose of the 2007 Regulation was to permit a Member Sate facing ‘extreme difficulties’ at its border to have rapid access – via Frontex – to other Member States’ border officials. The 2007 Regulation too was also based upon Articles 62(2)(a) and 66 TEC, using the co-decision procedure. It was adopted after the first reading stage using the ‘trilogue’ procedure.15 A more sweeping set of amendments was made by Regulation 1168/2011/EU of 25 October 2011.16 The 2011 Regulation followed a process of review of Frontex’s operations and legal framework which had been initiated in 2008.17 The aims of the 2011 Regulation were to enhance the effectiveness of Frontex, to give clarity to its legal framework and to impose a range of fundamental rights-related requirements upon it.18 The Commission proposal which led to the 2011 amending Regulation was published on 24 February 2010.19 After slow progress in the first 12 months, the legislative context was transformed by the events of the Arab Spring in 2011. The implications for migration of those events led the European Council to call on 11 March 2011 for rapid agreement on the Regulation.20 The Parliament’s LIBE Committee then defined its position on 17 March 2011, which was followed by a ‘trilogue’ process, and agreement on a compromise text on 21 June 2011.21 The 2011 Regulation was partly based upon Article 77 TFEU competences concerning the external border: Article 77(2)(b) TFEU, concerning checks at the external border – 11 DG Home, Study on the feasibility of the creation of a European System of Border Guards to control the external borders of the Union (June 2014). 12 COM(2003) 687 final. 13 This change was at the Council’s request: see Mitsilegas, in Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice, p. 367, and compare COM(2003) 687, p. 15 and Council doc. 9018/04 of 30 April 2004, p. 2. 14 OJ 2007 L 199/30. This had its origins in COM(2006) 401 final. 15 See Council doc. 8728/07 of 30 April 2007. 16 OJ 2011 L 304/1. 17 Report on the evaluation and future development of the FRONTEX Agency, COM(2008) 67 final. 18 See SEC(2010) 149 (the Impact Assessment accompanying COM(2010) 61); Trevisanut, in Azoulai/ de Vries (eds), EU Migration Law, p. 120. 19 Commission Communication COM(2010) 61 final. 20 European Council, Extraordinary European Council: Declaration (EUCO 7/1/11, 11 March 2011), para 10. See also Council doc 8518/2011 of 5 April 2011, noting that Declaration. 21 See Council doc. 12341/11 of 5 July 2011, p. 2.

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which had replaced Article 62(2)(a) TEC – and Article 77(2)(d) TFEU, concerning ‘the gradual establishment of an integrated management system for external borders’, a new competence introduced by the Treaty of Lisbon.22 It was also based on Article 74 TFEU, which is the successor to Article 66 TEC, and permits measures to ‘ensure administrative cooperation’ between Member State departments, and between them and the Commission.23 10 As a measure building on the Schengen acquis, the Frontex Regulation applies to Denmark on an international law basis (Regulation 2007/2004, recital 24). The four non-EU Schengen states – Iceland, Liechtenstein, Norway and Switzerland – also participate in Frontex.24 It is implicit that these states are to be considered ‘Member States’ for the purposes of the Frontex Regulation. 11 The Frontex Regulation does not apply to Ireland and the UK, as these EU Member States are outside the Schengen zone (see Regulation 2007/2004, recitals 26 and 25, respectively). The terms ‘Member State’ and ‘third country’ are not defined in the Regulation. Nevertheless, it follows from the counter-position of ‘the Member States’ to Ireland and the UK in recital 27 and Article 12 that the latter are not ‘Member States’ for the purposes of the Regulation. For coherence, it must be taken to follow that those states are ‘third countries’ under the Regulation (e. g. in Article 2(2): below, Article 2, MN 10). 12 The UK sought to participate in the negotiation of the original Frontex Regulation 2007/2004, but was blocked from so doing by the EU Member States in the Schengen zone, as it did not participate in Schengen external border arrangements.25 It then mounted an unsuccessful legal challenge to its exclusion from the Regulation.26 Its action failed above all because the Court of Justice held that the Frontex Regulation ‘built upon’ the Schengen acquis, as the principle of control at the external borders was central to that acquis.

III. Textual analysis: Mandate Article 1(1) formally establishes Frontex as the ‘European Agency for the Management of Operational Cooperation at the External Borders’. The reference to ‘cooperation’ in its name implies that it does not have its own executive role at the border. Moreover, the phrase ‘at the external borders’ suggests that its remit does not extend to immigration control within Member States, to controls at internal Schengen borders, or to action far removed from Schengen borders. 14 The first paragraph of Article 1(2) states that responsibility for control and surveillance of the external borders ‘lies with the Member States’. Correspondingly, the role of Frontex is stated to be one of ‘coordination’ of Member State action. This division of labour is significant because it implies that Member States retain legal responsibility for actions undertaken in the context of Frontex missions, while Frontex can argue that it does not have such responsibility (see MN 20 and 21 to this Article). 15 It is significant that the stated role of Frontex concerns the effective application and implementation of EU acquis concerning the external borders, including the Schengen Borders Code. Other possible roles for Frontex – including a possible humanitarian mandate – therefore lack foundation in the Regulation, as it currently stands. 13

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On this legislative power, see Mungianu, EJML 15 (2013), p. 365–367. On this legislative power, see Mungianu, EJML 15 (2013), p. 367–369. 24 For Iceland and Norway, see Council Decision 2007/511 OJ L 188 20.7.2007 p. 15. For Liechtenstein and Switzerland, see Council Decision 2010/490 OJ L 243 16.9.2010 p. 22. 25 Mitsilegas, in Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice, p. 371–372. 26 ECJ, UK v. Council, C-77/05, EU:C:2007:803. 23

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IV. Textual analysis: Fundamental rights and related obligations The second paragraph of Article 1(2), added in 2011, requires Frontex to respect a range of legal obligations and principles. Two instruments are mentioned by name: the ChFR and the 1951 Refugee Convention.27 Beyond these, reference is made to ‘relevant’ EU law and international law, to ‘obligations related to access to international protection, in particular the principle of non-refoulement’, and to ‘fundamental rights’.28 Recitals 17, 18 and 19 to the Regulation show, respectively, that ‘relevant EU law’ includes Regulation 1073/1999/EC of 25 May 1999 concerning investigations by the European Anti-Fraud Office29, Regulation 1049/2001/EC of 30 May 2001 regarding public access to documents30, and Regulation 45/2001/EC of 18 December 2000 concerning the processing of personal data by EU institutions and bodies.31 The terms ‘access to international protection’ and ‘non-refoulement’ are not defined in the Regulation. It is likely that these terms cover both the protection of refugees deriving from the 1951 Refugee Convention, and ‘subsidiary protection’ guarantees against expulsion, deriving from Articles 2 and 3 ECHR (and by extension Articles 2 and 4 ChFR), and Article 15(c) of the Qualification Directive.32 One reason is that the recast EU legislation on international protection covers both categories of claim.33 Another is that the 2014 Sea Borders Regulation expressly treats non-refoulement as covering both categories (see chapter on that Regulation, Article 4 MN 7). Recital 22 to the Regulation shows that the term ‘fundamental rights’ covers the legal principles in the ChFR and – in case these go further – the ECHR or the common constitutional traditions of the Member States.34 The other ‘international law’ that might be relevant is not stated in the text of the Frontex Regulation. The following other international law instruments relevant to Frontex are however referred to in recital 8 to the Sea Borders Regulation (discussed in a separate chapter): – UNCLOS (1982), to which the EU itself, and 31 EU or associated Schengen states are party (all except Liechtenstein);35 – the SOLAS Convention (1974), to which 31 EU or associated Schengen states are party (all except Liechtenstein); 27 These specific references were initially proposed by the Parliament: see Council doc. 7961/11 of 25 March 2011, p. 23. 28 The reference to non-refoulement was initially proposed by the Parliament: see Council doc. 7961/11 of 25 March 2011, p. 23. 29 OJ 1999 L 136/15. 30 OJ 2001 L 145/43. 31 OJ 2001 L 8/1. 32 Directive 2011/95/EU 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 2011 L 337/9). 33 These are: Directive 20011/95/EU, above note 32; Regulation 604/2013 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 (OJ 2013 L 180/31); Directive 2013/32/ EU of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180/60); and, Directive 2013/33/EU laying down standards for the reception of applicants for international protection (OJ 2013 L 180/137). 34 Recital 22 refers to Article 6(2) of the TEU. This refers to the pre-Lisbon version of the TEU, and the recital should now presumably be read as it if referred to Article 6(3) TEU. 35 Note that the EU ratified UNCLOS on 1 April 1998 in relation to specified areas of competence, which do not include borders and immigration.

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– the SAR Convention (1979), to which 27 EU or associated Schengen states are party (all except Austria, the Czech Republic, Slovakia, Liechtenstein and Switzerland); – the UN Convention against Transnational Organized Crime (1990), to which the EU itself and all 32 EU or associated Schengen states are party; – the Migrant Smuggling Protocol (2000) to which the EU itself, and 30 EU or associated Schengen states are party (all except Iceland and Ireland) – the ICCPR (1966), to which all 32 EU or associated Schengen states are party – the CAT (1984), to which all 32 EU or associated Schengen states are party – the UN Convention on the Rights of the Child (1989), to which all 32 EU or associated Schengen states are party. 21 An important question in this area is whether Frontex is capable of breaching fundamental rights, non-refoulement, or other international law principles. Frontex’s position is that, because Member States and their officials conduct external border operations, there are no acts or decisions of Frontex to which legal responsibility can attach. For that reason, it has refused to establish its own complaints mechanism for alleged fundamental rights violations during Frontex operations.36 22 That legal analysis is open to question, given Frontex’s degree of involvement in some aspects of border control. One argument is that, when Frontex deploys guest officers from other Member States to assist a host Member State’s external border control, they are required to identify themselves as Frontex officers (see below, Article 10 MN 5). Given this identification, it appears artificial that the host state and/or of the officer’s home state alone have responsibility for their conduct, and alone may receive complaints relating to that conduct.37 More generally, Frontex might be thought to have duties through its involvement in the organisation of operations – including border control, operations at sea and joint returns by air. Legal difficulties might arise where it did not require Member States to respect fundamental rights or non-refoulement and/or did not sufficiently concern itself with whether Member States respected those obligations.

Article 1a Definitions For the purposes of this Regulation, the following definitions shall apply: 1. ‘external borders of the Member States’ means the land and sea borders of the Member States and their airports and seaports, to which the provisions of Community law on the crossing of external borders by persons apply; 1a. ‘European Border Guard Teams’ means for the purpose of Article 3, Article 3b, Article 3c, Article 8 and Article 17, teams to be deployed during joint operations and pilot projects; for the purpose of Articles 8a to 8g, teams to be deployed for rapid border interventions (‘rapid interventions’) within the meaning of Regulation (EC) No 863/2007(11), and for the purpose of points (ea) and (g) of Article 2(1) and Article 5, teams to be deployed during joint operations, pilot projects and rapid interventions; 36 See for example a letter from Frontex to the European Ombudsman concerning its own-initiative inquiry OI/5/2012/BEH-MHZ, 17 May 2012, Annex 1, available at http://www.ombudsman.europa.eu [last accessed 8 July 2015]. 37 For this argument in relation to a Frontex complaints mechanism, see Special Report of the European Ombudsman in own-initiative inquiry OI/5/2012/BEH-MHZ concerning Frontex (12 November 2013), para 37, available at http://www.ombudsman.europa.eu [last accessed 8 July 2015]. (11) Regulation (EC) No 863/2007 of the European Parliament and of the Council of 11 July 2007 establishing a mechanism for the creation of Rapid Border Intervention Teams (OJ L 199, 31.7.2007, p. 30).

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2. ‘host Member State’ means a Member State in which a joint operation, a pilot project or a rapid intervention takes place or from which it is launched; 3. ‘home Member State’ means the Member State of which a member of the team or the guest officer is a border guard; 4. ‘members of the teams’ means border guards of Member States serving with the European Border Guard Teams other than those of the host Member State; 5. ‘requesting Member State’ means a Member State whose competent authorities request the Agency to deploy teams for rapid interventions on its territory; 6. ‘guest officers’ means the officers of border guard services of Member States other than the host Member State participating in joint operations and pilot projects. Content I. History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. ‘External borders’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Other definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. History A separate Article 1a containing definitions was added by the 2007 Regulation, and 1 then amended by the 2011 Regulation. The definition of an ‘external border’ had previously appeared as Article 1(4) of the 2004 Regulation. The other concepts and definitions now within Article 1a did not appear until 2007.

II. ‘External borders’ In the Frontex Regulation, the term ‘external borders’ is stated to cover the land 2 borders, sea borders, airports and seaports of the Member States. The Schengen Borders Code of 2006 takes a slightly different approach, by expressly including river and lake borders and ports.38 It is to be assumed that that is also the implicit position under the Frontex Regulation. Under Article 1a(1), an ‘external border’ is a border or port to which ‘Community 3 law on the crossing of borders by persons’ applies. In the current state of EU law, this phrase presumably means the Schengen Borders Code, other than its Title III concerning internal borders. The Schengen Borders Code applies to all the territories of Schengen states which are within the EU, and not to their territories that are outside the EU.39 That area includes the four EU member states – Bulgaria, Croatia, Cyprus and Romania – that are bound by the Schengen acquis, even though internal border controls between them and other Schengen states have not (yet) been abolished. It also includes Spain’s North African enclaves of Ceuta and Melilla, which have land borders with Morocco, even though controls on entry continue to apply to travel between those territories and other parts of Schengen area (including other Spanish territory).40 The logic of Article 1a(1) is that Frontex’s remit applies to borders and travel between 4 the Schengen zone and EU Member States and territories that are not within the Schengen area. i. e. Ireland, the UK and the French overseas departments. (In relation to Gibraltar, see Article 12, below.) 38

Schengen Borders Code, Article 2(2). For the list of overseas member state territories that are not part of the EU, see Annex II to the TFEU. 40 Declaration by Spain published in OJ 2000 L 239/73, recognised in the Schengen Borders Code, Article 36. 39

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III. Other definitions The definition of ‘European Border Guard Teams’ (EBGTs) in Article 1a(1a) was added by the 2011 amending Regulation. Its complex structure reflects the fact that one set of legal provisions applies if EBGTs are involved in a joint operation or pilot project under Articles 3 and 3a of the Regulation, while a distinct legal framework applies if they are involved in a rapid intervention under its Article 8a. The introduction of a single concept to cover both cases was initially proposed by the Parliament.41 6 The ‘host Member State’ (Article 1a(3)) is the state with the primary legal and administrative responsibility for a Frontex joint operation, pilot project or rapid intervention. A textual amendment in 2011 saw the addition of the words ‘or from which it is launched’ to the definition of ‘host Member State’. This extension presumably covers operations on the high seas, and is evidence that such operations are within Frontex’s remit. 5

CHAPTER II TASKS Article 2 Main tasks 1. The Agency shall perform the following tasks: (a) coordinate operational cooperation between Member States in the field of management of external borders; (b) assist Member States on training of national border guards, including the establishment of common training standards; (c) carry out risk analyses, including the assessment of the capacity of Member States to face threats and pressures at the external borders; (d) participate in the development of research relevant for the control and surveillance of external borders; (da) assist Member States in circumstances requiring increased technical and operational assistance at the external borders, taking into account that some situations may involve humanitarian emergencies and rescue at sea; (e) assist Member States in circumstances requiring increased technical and operational assistance at the external borders, especially those Member States facing specific and disproportionate pressures; (ea) set up European Border Guard Teams that are to be deployed during joint operations, pilot projects and rapid interventions; (f) provide Member States with the necessary support, including, upon request, coordination or organisation of joint return operations; (g) deploy border guards from the European Border Guard Teams to Member States in joint operations, pilot projects or in rapid interventions in accordance with Regulation (EC) No 863/2007; (h) develop and operate, in accordance with Regulation (EC) No 45/2001, information systems that enable swift and reliable exchanges of information regarding

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emerging risks at the external borders, including the Information and Coordination Network established by Decision 2005/267/EC(12); (i) provide the necessary assistance for the development and operation of a European border surveillance system and, as appropriate, to the development of a common information-sharing environment, including interoperability of systems, in particular by establishing, maintaining and coordinating the EUROSUR framework in accordance with Regulation (EU) No 1052/2013 of the European Parliament and of the Council(13). 1a. In accordance with Union and international law, no person shall be disembarked in, or otherwise handed over to the authorities of, a country in contravention of the principle of non-refoulement, or from which there is a risk of expulsion or return to another country in contravention of that principle. The special needs of children, victims of trafficking, persons in need of medical assistance, persons in need of international protection and other vulnerable persons shall be addressed in accordance with Union and international law. 2. Without prejudice to the competencies of the Agency, Member States may continue cooperation at an operational level with other Member States and/or third countries at external borders, where such cooperation complements the action of the Agency. Member States shall refrain from any activity which could jeopardise the functioning of the Agency or the attainment of its objectives. Member States shall report to the Agency on those operational matters at the external borders outside the framework of the Agency. The Executive Director of the Agency (‘the Executive Director’) shall inform the Management Board of the Agency (‘the Management Board’) on those matters on a regular basis and at least once a year. Content I. Tasks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Non-refoulement and vulnerable persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. Tasks Article 2(1) concerns what are termed the ‘main tasks’ of Frontex. It appears to be 1 under a duty to perform (‘shall’) these tasks. It is arguable that it may engage in other tasks too, provided they are consistent with its overall remit set out in Articles 1(1) and (2). In Article 2(1)(a), the task of co-ordination concerning the management of external 2 borders is said to relate to ‘operational cooperation between Member States’. This formulation does not cover direct co-ordination between Frontex and a sole Member State. It cannot be ruled out however that (for the reasons given in MN 1, above), Article 2 as a whole permits such co-ordination to occur. Article 2(1)(da) and Article 2(1)(e) each refer to the task of assisting Member States 3 ‘in circumstances requiring increased technical and operational assistance’. The original version of the Frontex Regulation referred to this task without further elaboration. The 2011 amending Regulation then distinguished two scenarios: Article 2(1)(da) provides that some such situations ‘may involve humanitarian emergencies and rescue at sea’, while Article 2(1)(e) refers to Member States facing ‘specific and dispropor(12) Council Decision 2005/267/EC of 16 March 2005 establishing a secure web-based Information and Coordination Network for Member States’ Migration Management Services (OJ L 83, 1.4.2005, p. 48). (13) Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (EUROSUR) (OJ L 295, 6.11.2013, p. 11).

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tionate pressures’.42 The significance of Article 2(1)(da) is that it permits Frontex to make provision for rescue at sea and for other humanitarian needs, within its broader remit. (See further the chapter on the Sea Borders Regulation.) 4 The tasks of setting up and deploying European Border Guard Teams (EBGTs), referred to in Article 2(1)(e) and Article 2(1)(g), were added by the 2011 Regulation. These tasks are elaborated in Articles 3b and 3c (see below). 5 The task of supporting joint return operations, referred to in Article 2(1)(f), is elaborated in Article 9 (see below). The phrasing in the original version of the Regulation was that Frontex should ‘provide Member States with … support in organising’. That implied that the Member State remained responsible for the organisation of such operations. As a result of amendments in 2011, Frontex may provide ‘co-ordination or organisation’, which permits it to take a more central role in joint return arrangements.43 6 Article 2(1)(i), which was added in 2011, sets out the task of assisting the development and operation of ‘a European border surveillance system.’ This task refers to Eurosur, which is a system for the sharing of border surveillance information, and the co-ordination of border surveillance, between the Schengen states, and with Frontex. Eurosur was established by Regulation 1052/2013/EU, adopted on 22 October 2013,44 and became operational on 2 December 2013. The roles of Frontex are detailed in Article 6 of that Regulation: to establish and maintain the Eurosur communication network; to establish and maintain what are termed ‘the European situational picture’, and ‘the common pre-frontier intelligence picture’; and, to co-ordinate the use of surveillance tools.

II. Non-refoulement and vulnerable persons Article 2(1a) was added by the 2011 Regulation.45 Its first sentence requires respect for the non-refoulement principle, ‘in accordance with Union and international law.’ The legal sources of this principle were discussed above (Article 1 MN 18). Where the principle of non-refoulement applies, neither disembarkation nor a handover to another state is permitted. The principle applies both directly to that other state, and indirectly, where there is a risk of subsequent expulsion or return to a further state. The reference to disembarkation relates to persons who are intercepted and/or rescued at sea. (See the chapter on the Sea Borders Regulation, Article 4.) The reference to a ‘handover’ is more general in application, and arguably covers all of operations at sea, refusals at a frontier and joint return operations. 8 One question in this area is whether non-refoulement obligations can apply outside the territories of the Member States. (See also above Thym, Legal Framework for Entry and Border Controls, MN 37 et seq.) It is established that the guarantees concerning non-refoulement in Article 3 ECHR and Article 3 CAT apply to persons intercepted or rescued at sea by a contracting state’s vessel, as it thereby acquires ‘control’ over them.46 In the case of the prohibition on non-refoulement in the Refugee Convention, states 7

42 These amendments each arose out of proposals made by the Parliament: see Council doc. 7961/11 of 25 March 2011, p. 25. 43 The Commission proposal was that Frontex should provide ‘coordination regarding organising: COM(2010) 61, p. 19. The Council proposed the reference to ‘coordination or organisation: Council doc. 7961/11 of 25 March 2011, p. 26. 44 Regulation 1052/2013/EU establishing the European Border Surveillance System (Eurosur), OJ 2013 L 295/11. 45 Its insertion arose out of a Parliament proposal: see Council doc. 7961/11 of 25 March 2011, p. 28. 46 In relation to the ECHR:, ECtHR (Grand Chamber), Judgement of 23 February 2012, No. 27765/09,. Hirsi Jamaa and others v. Italy; In relation to the CAT: UN Committee Against Torture, Decision of

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have historically sought to limit protection to persons within their territories. Nevertheless, the scope of the principle is now open to a broader reading as a result of the developments concerning human rights instruments.47 A different set of issues arises in relation to EU law as such. Secondary EU legislation concerning applications for international protection expressly applies only to those who make applications in Member State territory, including applications at the border and in transit zones.48 Without an express extension, it is not clear that these instruments apply to Member States or Frontex outside Schengen territory. The protection of vulnerable persons under the second sentence of Article 2(1a) does 9 not indicate which legal instruments are relevant. The EU Reception Conditions Directive contains a general duty to ‘take into account the specific situation of vulnerable persons’, and gives the following list as examples: ‘minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of human trafficking, persons with serious illness, persons with mental disorders and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, such as victims of female genital mutilation.49 In the case of children, we may assume that the primary reference point is the UN Convention on the Rights of the Child (1989). The legal instruments concerning victims of trafficking presumably include Directive 2011/36/EU on preventing and combating trafficking in human beings,50 the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (1990)51, and the Council of Europe Convention on Action against Trafficking in Human Beings (2005).52 Legal obligations concerning urgent medical assistance flow from Article 3 ECHR, Article 12 ICESCR, and Article 11 of the European Social Charter (1961) and of the Revised European Social Charter (1996). Specific obligations concerning persons in need of international protection flow from the Refugee Convention. Article 2(2) permits Member States to engage in operational co-operation with other 10 states, provided that that co-operation ‘complements the action of the Agency’.53 This provision presumably covers co-operation between Schengen states; co-operation between one or more Schengen states and Ireland and the UK54; and, co-operation between Schengen states and other third states.55 21 November 2008, Communication No. 323/2007, J.H. A. v. Spain and UN Committee Against Torture, Decision of 25 November 2011, Communication No. 368/2008, Sonko v. Spain. 47 See UNHCR, Advisory Opinion on the Extraterritorial Application of Non-refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (2007); Klug/Howe, ‘The Concept of State Jurisdiction and the Applicability of the Non-refoulement Principle to Extraterritorial Interception Measures’ in Ryan/Mitsilegas, Valsamis (eds), Extraterritorial Immigration Control: Legal Challenges (Martinus Nijhoff, 2010), p. 69. 48 See Regulation 604/2013, Article 3; Directive 2013/32, Article 3; and, Directive 2013/33, Article 3 (all above, note 33). For a discussion, see den Heijer, Europe and Extraterritorial Asylum (Hart, 2012), p. 203–206. 49 See now Directive 2013/33/EU laying down standards for the reception of applicants for international protection, OJ 2013 L 180/96, Article 21. 50 OJ 2011 L 101/1. 51 See Articles 6–8 of the Protocol. The EU itself, and all EU or associated Schengen states, are parties. 52 This Convention has been ratified by 30 EU or associated Schengen states. The exceptions are the Czech Republic and Liechtenstein. 53 Article 2(2) was added during the negotiations on the 2004 Regulation, in order to protect the position of Member States: Mitsilegas, in Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice, p. 370. Compare COM(2003) 687, p. 19 and Council doc. 9018/04 of 30 April 2004, p. 8. 54 These include the arrangements between the UK and France and Belgium in relation to train and ferry traffic across the English Channel: see Ryan, ‘The European Dimension to British Border Control’, Journal of Immigration Asylum and Nationality Law 28 (2004), p. 6. 55 See above Thym, Legal Framework for Entry and Border Controls, MN 30.

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Article 2a Code of Conduct The Agency shall draw up and further develop a Code of Conduct applicable to all operations coordinated by 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 unaccompanied minors and vulnerable persons, as well as on persons seeking international protection, applicable to all persons participating in the activities of the Agency. The Agency shall develop the Code of Conduct in cooperation with the Consultative Forum referred to in Article 26a. 1

Article 2a was added to the Frontex Regulation by the 2011 amendments. It requires Frontex to have a Code of Conduct which lays down procedures to ensure respect for the rule of law and fundamental rights. These procedures are to include particular provision for unaccompanied minors, vulnerable persons and persons seeking international protection. The Code is to apply both to all Frontex ‘operations’ and to all persons participating in ‘the activities’ of the Agency. By the time of the amendments, the Code of Conduct in question had been approved by the Frontex Director, by a decision of 21 March 2011.56

Article 3 Joint operations and pilot projects at the external borders 1. The Agency shall evaluate, approve and coordinate proposals for joint operations and pilot projects made by Member States, including the requests of Member States related to circumstances requiring increased technical and operational assistance, especially in cases of specific and disproportionate pressures. The Agency may itself initiate and carry out joint operations and pilot projects in cooperation with the Member States concerned and in agreement with the host Member States. It may also decide to put its technical equipment at the disposal of Member States participating in the joint operations or pilot projects. Joint operations and pilot projects should be preceded by a thorough risk analysis. 1a. The Agency may terminate, after informing the Member State concerned, joint operations and pilot projects if the conditions to conduct those joint operations or pilot projects are no longer fulfilled. The Member States participating in a joint operation or pilot project may request the Agency to terminate that joint operation or pilot project. The home Member State shall provide for appropriate disciplinary or other measures in accordance with its national law in case of violations of fundamental rights or international protection obligations in the course of a joint operation or pilot project. The Executive Director shall suspend or terminate, in whole or in part, joint operations and pilot projects if he/she considers that such violations are of a serious nature or are likely to persist. 56 It may be accessed at http://frontex.europa.eu/assets/Publications/General/Frontex_Code_of_Conduct.pdf [last accessed 8 July 2015].

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1b. The Agency shall constitute a pool of border guards called European Border Guard Teams in accordance with Article 3b, for possible deployment during joint operations and pilot projects referred to in paragraph 1. It shall decide on the deployment of human resources and technical equipment in accordance with Articles 3a and 7. 2. The Agency may operate through its specialised branches provided for in Article 16 for the practical organisation of joint operations and pilot projects. 3. The Agency shall evaluate the results of the joint operations and pilot projects and transmit the detailed evaluation reports within 60 days following the end of those operations and projects to the Management Board, together with the observations of the Fundamental Rights Officer referred to in Article 26a. The Agency shall make a comprehensive comparative analysis of those results with a view to enhancing the quality, coherence and effectiveness of future joint operations and pilot projects and include it in its general report provided for in point (b) of Article 20(2). 4. The Agency shall finance or co-finance the joint operations and pilot projects referred to in paragraph 1, with grants from its budget in accordance with the financial rules applicable to the Agency. 5. Paragraphs 1a and 4 shall apply also to rapid interventions. Content I. II. III. IV.

Setting up joint operations and pilot projects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Termination of joint operations and pilot projects . . . . . . . . . . . . . . . . . . . . . . . . . . Fundamental rights aspects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application to rapid interventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 6 8

I. Setting up joint operations and pilot projects Provision is made in Article 3 for joint operations and pilot projects. As a result of a 1 2011 amendment, the situations in which these forms of assistance may be requested include ‘circumstances requiring increased technical and operational assistance … especially … cases of specific and disproportionate pressures.’ That apart, the Regulation does not define the conditions in which ‘joint operations’ and ‘pilot projects’ are permitted, or specify the form they take. The first paragraph of Article 3(1) permits Member States to propose joint opera- 2 tions and pilot projects in general terms. Article 8 of the Regulation also permits Member States to request assistance under Article 3, if they are ‘facing specific and disproportionate pressures and confronted with circumstances requiring increased technical and operational assistance’. Where a Member State request is made, the role of Frontex is to ‘evaluate, approve and coordinate’ those proposals. This formulation arguably gives Frontex discretion to decline to approve a well-founded proposal (e. g. for resources reasons). The second paragraph of Article 3(1) provides that Frontex may itself ‘initiate and 3 carry out’ joint operations and pilot projects. This formulation dates from the 2011 amendments, and must be considered stronger than Article 4 of the 2004 Regulation, which had referred to Frontex’s power to ‘launch initiatives’. From the original Regulation onwards, it has been provided that Frontex-initiated action requires the agreement of one or more host Member States, and the co-operation of the Member States concerned. A reference to host state agreement had not appeared in the Commission’s 2003 legislative proposal, and was added by the Council of

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Ministers.57 In 2010, the Commission’s amendment proposals were again silent about host states, but the Council of Ministers again ensured that reference to them was retained in the final version.58

II. Termination of joint operations and pilot projects Article 3(1a), which was added in 2011, is concerned with the termination of joint operations and pilot projects. Its first paragraph confers on Frontex the exclusive right to terminate joint operations and pilot projects, provided the conditions for them are no longer fulfilled. In the event of such a termination, there is an obligation to inform the ‘Member State concerned’. This obligation arose from a Council proposal during the legislative process.59 The state in question must be the host state, as otherwise the use of the singular ’State‘ would be inappropriate. It is unclear whether the obligation to inform arises prior to the decision to terminate, or prior to the actual termination. 5 The meaning of the term ‘condition’ in the first paragraph presumably includes the objective situation at the border. One area of uncertainty is whether the term includes the continued support of the host member state. The Regulation as a whole is silent as to the legal situation were a host Member State to object to the continuation of an operation. Another question is whether the continued support of participating states is a ‘condition’ of an operation. The second paragraph of Article 3(1a) provides that ‘the Member States participating in’ an operation or project may request that Frontex terminate it. That might be thought to imply that their support is not a ‘condition’ of an operation. As phrased, Article 3(1a) appears to require that all the participating states must make the request.60 4

III. Fundamental rights aspects The third paragraph of Article 3(1a) states that, where fundamental rights or international protection obligations are violated, the home Member State is to provide for appropriate disciplinary or other measures, in accordance with its national law.61 (For the meaning of the concepts of ‘fundamental rights’ and ‘international protection’, see above Article 1 MN 19 and MN 18, respectively.) 7 The fourth paragraph of Article 3(1a) permits the Executive Director of Frontex to suspend or terminate a joint operation or pilot project in cases of violations of fundamental rights or international protection obligations. (For the meaning of the concepts of ‘fundamental rights’ and ‘international protection’, see above Article 1 MN 19 and MN 18, respectively.) This clause originates in a Parliament proposal which would have required termination in any case of violation.62 The more restricted final 6

57 Mitsilegas, in Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice, p. 369. Compare COM(2003) 687, p. 20 and Council doc. 9018/04 of 30 April 2004, p. 9. 58 See COM(2010) 61, p. 20 and Council doc. 7961/11 of 25 March 2011, p. 30. This provision was extensively discussed in the 2010–2011 negotiations within the Council, and must be considered a compromise between those favouring a leading role for Member States, and a leading role for Frontex: see Mungianu, EJML 15 (2013), p. 376. 59 See Council doc. 7961/11 of 25 March 2011, p. 31. 60 The possibility of a request arose from a Council proposal: see Council doc. 7961/11 of 25 March 2011, p. 31. That proposal referred to ‘participating states’, which would have implied that not all participating states needed to make a request. The first public document in which the final version appears is the joint document PE-CONS 37/11 of 30 September 2011. 61 This clause was proposed by the Parliament: see Council doc. 7961/11 of 25 March 2011, p. 32. 62 See Council doc. 7961/11 of 25 March 2011, p. 32.

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version that resulted from negotiations with the Council requires action only if the Executive Director considers that any violations to be either ‘of a serious nature’ or ‘likely to persist’.63 There is no express requirement to inform the Member State concerned of a termination.

IV. Application to rapid interventions Article 3(5) was added in 2011. Of relevance here is that it extends the provisions in 8 Article 3(1a) concerning termination of missions and respect for fundamental rights and access to international protection to rapid interventions. (This category of operation takes place under Articles 8a-8h, discussed below).

Article 3a Organisational aspects of joint operations and pilot projects 1. The Executive Director shall draw up an operational plan for the joint operations and pilot projects referred to in Article 3(1). The Executive Director and the host Member State, in consultation with the Member States participating in a joint operation or pilot project, shall agree on the operational plan detailing the organisational aspects in due time before the envisaged beginning of that joint operation or pilot project. The operational plan shall cover all aspects considered necessary for carrying out the joint operation or the pilot project, including the following: (a) a description of the situation, with modus operandi and objectives of the deployment, including the operational aim; (b) the foreseeable duration of the joint operation or pilot project; (c) the geographical area where the joint operation or pilot project will take place; (d) a description of the tasks and special instructions for the guest officers, including on permissible consultation of databases and permissible service weapons, ammunition and equipment in the host Member State; (e) the composition of the teams of guest officers, as well as the deployment of other relevant staff; (f) command and control provisions, including the names and ranks of the host Member State’s border guards responsible for cooperating with the guest officers and the Agency, in particular those of the border guards who are in command during the period of deployment, and the place of the guest officers in the chain of command; (g) the technical equipment to be deployed during the joint operation or pilot project, 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 public authorities; (i) a reporting and evaluation scheme containing benchmarks for the evaluation report and final date of submission of the final evaluation report in accordance with Article 3(3); (j) regarding sea operations, specific information on the application of the relevant jurisdiction and legislation in the geographical area where the joint operation or 63

See Council doc. 11017/11 of 1 June 2011, p. 16.

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pilot project takes place, including references to international and Union law regarding interception, rescue at sea and disembarkation; (k) modalities of cooperation with third countries, other Union agencies and bodies or international organisations. 2. Any amendments to or adaptations of the operational plan shall require the agreement of the Executive Director and the host Member State. A copy of the amended or adapted operational plan shall immediately be sent by the Agency to the participating Member States. 3. The Agency shall, as part of its coordinating tasks, ensure the operational implementation of all the organisational aspects, including the presence of a staff member of the Agency during the joint operations and pilot projects referred to in this Article. Article 3a provides for the organisation of joint operations and pilot projects. It was added in 2011, and draws upon an equivalent provision for rapid interventions added in 2007. (See Article 8e, discussed below.) The core principle, set out in Article 3a(1), is that the operational plan is to be agreed between Frontex’s Executive Director and the host Member State, after consultation with the other states involved.64 Article 3a(2) provides that any changes to the operational plan are be agreed by the Executive Director and the host Member State, with the other Member States informed after the fact. 2 Article 3a(1) includes a list of the main elements of the operational plan for a joint operation or a pilot project. It is in similar terms to the provision made in Article 8e (below) for operational plans for rapid intervetions. 3 Article 3a(1)(e) makes reference both to guest officers and to ‘other relevant staff’. The meaning of the latter phrase is unclear, but probably includes Frontex’s own staff. Under Article 3a(1)(f), express provision must be made for the command and control structure, and for how guest officers from other Member States fit within it. 4 In the case of operations at sea, Article 3a(1)(j) requires that the operational plan include ‘specific information’ about ‘the relevant jurisdiction and legislation’ applicable in the geographical area in question. This information is to include ‘reference to’ international and EU law on interception, rescue and disembarkation.65 (For a fuller discussion of the legal framework relating to operations at sea, see the chapter on the Sea Borders Regulation.) 1

Article 3b Composition and deployment of European Border Guard Teams 1. On a proposal by the Executive Director, the Management Board shall decide by an absolute majority of its members with a right to vote on the profiles and the overall number of border guards to be made available for the European Border Guard Teams. The same procedure shall apply with regard to any subsequent changes in the profiles and the overall numbers. Member States shall contribute to the European Border Guard Teams via a national pool on the basis of the various defined profiles by nominating border guards corresponding to the required profiles. 2. The contribution by Member States as regards their border guards to specific joint operations and pilot projects for the following year shall be planned on the basis 64 The Commission proposal did not provide for such consultation: see COM(2010) 61, p. 21. Provision for it was proposed by the Council of Ministers: see Council doc. 7961/11 of 25 March 2011, p. 34, Mungianu, EJML 15 (2013), p. 376. 65 This resulted from a proposal by the Parliament: see Council doc. 7961/11 of 25 March 2011, p. 36.

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of annual bilateral negotiations and agreements between the Agency and Member States. In accordance with those agreements, Member States shall make the border guards 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 45 days before the intended deployment. The autonomy of the home Member State in relation to the selection of staff and the duration of their deployment shall remain unaffected. 3. The Agency shall also contribute to the European Border Guard Teams with competent border guards seconded by the Member States as national experts pursuant to Article 17(5). The contribution by Member States as regards the secondment of their border guards to the Agency for the following year shall be planned on the basis of annual bilateral negotiations and agreements between the Agency and Member States. In accordance with those agreements, Member States shall make the border guards available for secondment, unless that would seriously affect the discharge of national tasks. In such situations Member States may recall their seconded border guards. The maximum duration of such secondments shall not exceed six months in a 12month period. The seconded border guards shall, for the purpose of this Regulation, be considered as guest officers and have the tasks and powers provided for in Article 10. The Member State having seconded the border guards in question shall be considered as the home Member State, as defined in point 3 of Article 1a, for the purpose of applying Articles 3c, 10 and 10b. Other staff employed by the Agency on a temporary basis who are not qualified to perform border control functions shall only be deployed during joint operations and pilot projects for coordination tasks. 4. Members of the European Border Guard 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. 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 grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. 5. In accordance with Article 8g, the Agency shall nominate a coordinating officer for each joint operation or pilot project where members of the European Border Guard Teams will be deployed. The role of the coordinating officer shall be to foster cooperation and coordination amongst host and participating Member States. 6. The Agency shall meet the costs incurred by the Member States in making their border guards available pursuant to paragraph 1 of this Article for the European Border Guard Teams in accordance with Article 8h. 7. The Agency shall inform the European Parliament on an annual basis of the number of border guards that each Member State has committed to the European Border Guard Teams in accordance with this Article. Article 3b was added in 2011. It makes provision for European Border Guard Teams, 1 made up of Member State officials. The profiles and number of border guards required are decided by the Frontex Management Board, acting by an absolute majority, on a proposal from the Executive Director. By virtue of Article 1a(1a) (above), these provisions apply only to the involvement of EBGTs in joint operations and pilot projects. Rapid interventions are regulated separately (see Article 8a, below).

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Article 3b is ambiguous in relation to the obligations upon Member States. The third sentence to Article 3b(1) suggests an obligation, when it provides that ‘Member States shall contribute’ officials to the EBGTs via a national pool.66 A different impression is however given by Article 3b(2) and (3), which respectively provide for Member States’ contribution of border guards and seconded officials to be agreed in annual negotiations with Frontex. These references to negotiations were added as a result of Council proposals in the legislative process.67 3 Under Article 3b(2), Frontex may call upon Member State officials for an EBGT by giving at least 45 days’ notice. Where it does so, Member States are obliged to make the border guards available, unless they face ‘an exceptional situation substantially affecting the discharge of national tasks’. Member States retain autonomy over the choice of officials, and the duration of their deployment. 4 Under Article 3b(3), Member States must make officials available for secondment, unless that would ‘seriously affect the discharge of national tasks’. Secondment is for a maximum of six months in any 12-month period. 5 Article 3b(4) requires that members of EBGTs involved in joint operations and pilot projects should respect fundamental rights. That obligation is stated to include ‘access to asylum procedures’.68 That phrase is theoretically narrower than the concept of access to ‘international protection’ in Article 3(1a) (above, Article 1 MN 18). In the interests of coherence, it is probable that a broad reading – covering both the Refuge Convention and subsidiary sources of protection – should apply here too. Article 3b(4) also requires respect for human dignity, that any measures taken are proportionate ones, and that EBGT members should not discriminate on specified grounds (sex, racial or ethnic origin, religion or belief, disability or sexual orientation). It may be added that Article 10(2) of Regulation 863/2007 places equivalent obligation upon officers involved in rapid interventions. 2

Article 3c Instructions to the European Border Guard Teams 1. During deployment of European Border Guard Teams, the host Member State shall issue instructions to the teams in accordance with the operational plan referred to in Article 3a(1). 2. The Agency, via its coordinating officer as referred to in Article 3b(5), may communicate its views on the instructions referred to in paragraph 1 to the host Member State. If it does so, the host Member State shall take those views into consideration. 3. In accordance with Article 8g, the host Member State shall give the coordinating officer all necessary assistance, including full access to the European Border Guard Teams at all times throughout the deployment. 4. Members of the European Border Guard Teams shall, while performing their tasks and exercising their powers, remain subject to the disciplinary measures of their home Member State.

66 This aspect is emphasised by Mungianu, EJML 15 (2013), p. 381 and Trevisanut, in Azoulai/de Vries (eds), EU Migration Law, p. 117. 67 See Council doc. 7961/11 of 25 March 2011, p. 38; Council doc. 11017/11 of 1 June 2011, p. 11. 68 This phrase has its origins in a proposal by the Parliament for reference to be made to ‘the right of asylum’: see Council doc. 7961/11 of 25 March 2011, p. 40.

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Article 3c, which was added in 2011, concerns the position of EBGT officers in host 1 Member States. It Article 3c(1) provides that it is the responsibility of the host member state to give instructions to EBGT members. Article 3c(4) provides that EBGT members nevertheless remain subject to disciplinary measures on the part of the home Member State.

Article 4 This provision, dealing with risk analysis, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 5 Training The Agency shall provide border guards who are members of the European Border Guard Teams with advanced training relevant to their tasks and powers and shall conduct regular exercises with those border guards in accordance with the advanced training and exercise schedule referred to in the annual work programme of the Agency. The Agency shall also take the necessary initiatives to ensure that all border guards and other personnel of the Member States who participate in the European Border Guard Teams, as well as the staff of the Agency, have received, prior to their participation in operational activities organised by the Agency, training in relevant Union and international law, including fundamental rights and access to international protection and guidelines for the purpose of identifying persons seeking protection and directing them towards the appropriate facilities. The Agency shall establish and further develop common core curricula for the training of border guards and provide training at European level for instructors of the national border guards of Member States, including with regard to fundamental rights, access to international protection and relevant maritime law. The Agency shall draw up the common core curricula after consulting the Consultative Forum referred to in Article 26a. Member States shall integrate the common core curricula in the training of their national border guards. The Agency shall also offer additional training courses and seminars on subjects related to the control and surveillance of the external borders and return of third country nationals for officers of the competent national services of Member States. The Agency may organise training activities in cooperation with Member States on their territory. The Agency shall establish an exchange programme enabling border guards participating in the European Border Guard Teams to acquire knowledge or specific know-how from experiences and good practices abroad by working with border guards in a Member State other than their own. Article 5 is concerned with the training of officials involved in Frontex operations. 1 Of particular relevance here are two references within it to training in legal matters. The first is in the second paragraph which dates from 2011.69 It requires that Frontex should 69 The second paragraph was proposed by the Parliament: see Council doc. 7961/11 of 25 March 2011, p. 50.

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ensure training in ‘relevant’ EU and international law, including in relation to fundamental rights and access to international protection. (On the meaning of these terms, see above Article 1, MN 16 et seq.) It is specifically stated that this training should include guidelines concerning the identification of persons needing protection, and for the direction of such persons to ‘appropriate facilities’. 2 The training obligation in the second paragraph of Article 5 applies to border guards and other Member State personnel who participate in EBGTs. By virtue of Article 1a(1a), above, this covers those involved in all of joint operations, pilot projects and rapid interventions. One point of uncertainty is who the ‘other’ Member State personnel are, as Article 3b of the Regulation (above) implies that EBGTs are to be made up exclusively of Member State border guards. The training obligation is also stated to apply to Frontex staff. In their case, it is arguable that the obligation extends beyond joint operations, pilot projects and rapid interventions, to include those involved in joint returns under Article 9 (below). 3 The second reference to legal matters is in the third paragraph, which provides inter alia for Frontex to provide training ‘at the European level’ for the instructors of Member State border guards. A 2011 amendment requires that this training include provision for fundamental rights, access to international protection and maritime law.70

Article 6 This provision dealing with research has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 7 This provision dealing with technical equipment has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 8 Support to Member States in circumstances requiring increased technical and operational assistance at external borders 1. Without prejudice to Article 78(3) of the Treaty on the Functioning of the European Union (‘TFEU’), one or more Member States facing specific and disproportionate pressures and confronted with circumstances requiring increased technical and operational assistance when implementing their obligations with regard to control and surveillance of external borders may request the Agency for assistance. The Agency shall in accordance with Article 3 organise the appropriate technical and operational assistance for the requesting Member State(s). 2. Under the circumstances referred to in paragraph 1, the Agency can: (a) assist on matters of coordination between two or more Member States with a view to tackling the problems encountered at external borders; 70 The first two elements were proposed by the Commission: see COM(2010) 61, p. 23–24. The reference to maritime law was proposed by the Parliament: see Council doc. 7961/11 of 25 March 2011, p. 51.

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Art. 8a

Frontex Regulation (EC) No 2007/2004

Part B IV

(b) deploy its experts to support the competent national authorities of the Member State(s) involved for the appropriate duration; (c) deploy border guards from the European Border Guard Teams. 3. The Agency may acquire technical equipment for checks and surveillance of external borders to be used by its experts and within the framework of rapid interventions for their duration. Article 8 is concerned with support for Member States in circumstances that require 1 ‘increased technical and operational assistance’. Article 8 appears unnecessary in the current version of the Regulation, as its subject-matter is covered by Article 3, as amended in 2011 (above, MN 1). In the legislative process leading to the 2011 amendments, the Commission had proposed the deletion of Article 8, but that was not accepted by the Council of Ministers.71 It is instead provided that action by Frontex relating to Article 8 is to be taken under Article 3.

Article 8a Rapid interventions At the request of a Member State faced with a situation of urgent and exceptional pressure, 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 illegally, the Agency may deploy for a limited period one or more European Border Guard Teams (‘team(s)’) on the territory of the requesting Member State for the appropriate duration in accordance with Article 4 of Regulation (EC) No 863/2007. Content I. Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Textual analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2

I. Overview Articles 8a-8h provide for the organisation by Frontex of rapid interventions. These 1 options were first provided for in Regulation 863/2007. By comparison with joint operations, rapid interventions are expected to run for a more limited period (this Article, MN 4), are covered by a stronger presumption of Member State contribution (Article 8b, below), and have a shorter time-scale to launch (Article 8d, below). The legal framework governing rapid interventions is partly in the Frontex Regulation, and partly in the 2007 Regulation. A change in terminology with the 2011 amending Regulation saw the removal of references to ‘rapid border intervention teams’. When rapid interventions take place, they are now conducted by EBGTs (above, Article 1a, MN 5).

II. Textual analysis According to Article 8a, the substantive pre-condition to a rapid intervention is that 2 a Member State is ‘faced with a situation of urgent exceptional pressure’. It also indicates that a Member State faces such a situation especially when ‘large numbers’ of persons are ‘trying to enter … that Member State illegally’. 71

COM(2010) 61, p. 52, Council doc. 7961/11 of 25 March 2011, p. 58.

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The role of Frontex in decision-making about rapid interventions under Article 8a is different to that contemplated for joint operations and pilot projects in Article 3 (above, MN 2 and 3). Only a Member State may request a rapid intervention, and there is no provision for Frontex itself to take the initiative. Moreover, Article 8a provides that Frontex ‘may deploy’ in response to such a request, which appears to leave it discretion to decline to act. If there is an equivalent discretion under Article 3, it is implicit there. 4 Under Article 8a, any deployment should be for a ‘limited period’. Article 8a also states that, in the context of a rapid intervention, EBGTs are to be deployed ‘on the territory’ of the Member State concerned. However, provision for rapid interventions at sea added to the Regulation in 2011 (see below Article 8e, MN 275) implies that those can involve deployment from a host state’s territory. 5 Deployment of an EBGT in a rapid intervention must be ‘in accordance with’ Article 4 of Regulation 863/2007, which concerns the making available by Member States of their officers. A comparison with the provision for joint operations and pilot projects in Article 3b of the Frontex Regulation (above) reveals the following points: – Under Article 4(2) of Regulation 863/2007, decisions about the profiles and overall number of officers in the ‘rapid pool’ are made by the Frontex Management Board, on a proposal from its Executive Director, by a three-quarters’ majority. An absolute majority is required under Article 3b(1) of the Frontex Regulation. – Article 4(2) of Regulation 863/2007 states that Member States ‘shall contribute’ officials ‘via a national expert pool’, without further elaboration. In contrast, Article 3b(2) of the Frontex Regulation also provides for annual negotiation with Frontex. – The duty of a Member State to make officials available, unless they face an exceptional situation of their own, is stated in identical terms in Article 4(3) of Regulation 863/2007 and in Article 3b(2) of the Frontex Regulation. 3

Article 8b Composition of teams 1. In the event of a situation as described in Article 8a, Member States shall, at the request of the Agency, immediately communicate the number, names and profiles of border guards from their national pool which they are able to make available within five days to be members of a team. Member States shall make the border guards available for deployment at the request of the Agency unless they are faced with an exceptional situation substantially affecting the discharge of national tasks. 2. When determining the composition of a team for deployment, the Executive Director shall take into account the particular circumstances which the requesting Member State is facing. The team shall be composed in accordance with the operational plan referred to in Article 8e. 1

Article 8b concerns Member State provision to EBGTs in rapid interventions. Article 8b(1) provides that, when requested for assistance by Frontex, Member States should ‘immediately’ inform them of the details of the border guards that they can make available within five days. The starting-point is that a Member State is obliged to make the requested guards available. A Member State is not obliged to make these guards available if it is itself faced with ‘an exceptional situation substantially affecting the discharge of national tasks’.

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Art. 8d

Frontex Regulation (EC) No 2007/2004

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Article 8c This provision dealing with training and exercises of the Rapid Pool has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 8d Procedure for deciding on deployment of the teams 1. A request for deployment of the teams in accordance with Article 8a shall include a description of the situation, possible aims and envisaged needs for the deployment. If required, the Executive Director may send experts from the Agency to assess the situation at the external borders of the requesting Member State. 2. The Executive Director shall immediately inform the Management Board of a Member State’s request for deployment of the teams. 3. When deciding on the request of a Member State, the Executive Director shall take into account the findings of the Agency’s risk analyses as well as any other relevant information provided by the requesting Member State or another Member State. 4. The Executive Director shall take a decision on the request for deployment of the teams as soon as possible and no later than five working days from the date of the receipt of the request. The Executive Director shall simultaneously notify the requesting Member State and the Management Board in writing of the decision. The decision shall state the main reasons on which it is based. 5. If the Executive Director decides to deploy one or more teams, the Agency together with the requesting Member State shall draw up an operational plan in accordance with Article 8e immediately, and in any event no later than five working days from the date of the decision. 6. As soon as the operational plan has been agreed, the Executive Director shall inform the Member States of the requested number and profiles of border guards which are to be deployed in the teams. This information shall be provided, in writing, to the national contact points designated under Article 8f and shall indicate the date on which the deployment is to take place. A copy of the operational plan shall also be provided to them. 7. If the Executive Director is absent or indisposed, the decisions related to the deployment of the teams shall be taken by the Deputy Executive Director. 8. Member States shall make the border guards available for deployment at the request of the Agency, unless they are faced with an exceptional situation substantially affecting the discharge of national tasks. 9. Deployment of the teams shall take place no later than five working days after the date on which the operational plan is agreed between the Executive Director and the requesting Member State. Article 8d is concerned with the procedure for the deployment of EBGTs in rapid 1 interventions. The decision on a request is to be taken by the Executive Director within five working days. Upon receipt of a request, the Executive Director is to immediately inform the Management Board. If a decision to deploy is taken, the Executive Director and the Member State concerned are to draw up an operational plan ‘immediately’, and Ryan

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in any event within five working days.72 That is then to be communicated to the other Member States with a request for assistance. The actual deployment is to take place within five working days of the date on which the operational plan is agreed.

Article 8e Operational plan 1. The Executive Director and the requesting Member State shall agree on an operational plan detailing the precise conditions for deployment of the teams. The operational plan shall include the following: (a) description of the situation, with modus operandi and objectives of the deployment, including the operational aim; (b) the foreseeable duration of deployment of the teams; (c) the geographical area of responsibility in the requesting Member State where the teams will be deployed; (d) description of tasks and special instructions for members of the teams, including on permissible consultation of databases and permissible service weapons, ammunition and equipment in the host Member State; (e) the composition of the teams, as well as the deployment of other relevant staff; (f) command and control provisions, including the names and ranks of the border guards of the host Member State responsible for cooperating with the teams, in particular of those border guards who are in command of the teams during the period of deployment, and the place of the teams in the chain of command; (g) the technical equipment to be deployed together with the teams, 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 public authorities; (i) a reporting and evaluation scheme containing benchmarks for the evaluation report and final date of submission of the final evaluation report in accordance with Article 3(3); (j) regarding sea operations, specific information on the application of the relevant jurisdiction and legislation in the geographical area where the rapid intervention takes place, including references to international and Union law regarding interception, rescue at sea and disembarkation; (k) modalities of cooperation with third countries, other Union agencies and bodies or international organisations. 2. Any amendments to or adaptations of the operational plan shall require the agreement of both the Executive Director and the requesting Member State. A copy of the amended or adapted operational plan shall immediately be sent by the Agency to the participating Member States. 1

The content of operational plans for rapid interventions is provided for in Article 8e(1). It is in very similar terms to the provision made in Article 3a (above) for operational plans for joint operations and pilot projects. (It should be noted that Article 8e dates from the 2007 Regulation, whereas Article 3a dates from the 2011 amending Regulation.) 72 The reference to a maximum of five working days in drawing up the operational plan was added by the 2011 amendments.

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Art. 9

Frontex Regulation (EC) No 2007/2004

Part B IV

Point (c) requires that the operational plan include information concerning ‘the 2 geographical area of responsibility in the requesting Member State where the teams will be deployed’. This is in contrast to Article 3a(1)(c), which does not contain the words ‘in the requesting Member State’. While this might be thought to imply that a host state territory cannot be the base for operations elsewhere, it must be read together with the provision for sea operations in Article 8e(1)(j), added in 2011. One change made to Article 8e(1) in 2011 was the addition of a reference to ‘other 3 relevant staff’ in point (e). While this phrase is not defined, its inclusion caters for the possibility that some of the personnel involved will be Frontex staff.73 Another change to the earlier version saw the inclusion of the words ‘command and control provisions’ in point (f). The inclusion of those words here implies a more extensive requirement than the previous version, which had merely required information as to the ‘names and ranks’ of those involved in co-operation or with a command role.

Article 8f This provision dealing with national contact points has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 8g Coordinating Officer This provision dealing with national contact points has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 8h This provision dealing with the meeting of Member State costs by Frontex has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 9 Return cooperation 1. Subject to the return policy of the Union, and in particular 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 thirdcountry nationals(14), and without entering into the merits of return decisions, the Agency shall provide the necessary assistance, and at the request of the participating Member States ensure the coordination or the organisation of joint return operations of Member States, including through the chartering of aircraft for the purpose of 73 See the references to Frontex ‘staff’ in Article 3a(3), Article 3b(4) – which expressly contemplates temporary staff – Article 8g(1) and Article 17. (14) OJ L 348, 24.12.2008, p. 98.

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such operations. The Agency shall finance or co-finance the operations and projects referred to in this paragraph with grants from its budget in accordance with the financial rules applicable to the Agency. The Agency may also use financial means of the Union available in the field of return. The Agency shall ensure that in its grant agreements with Member States any financial support is conditional upon the full respect for the Charter of Fundamental Rights. 1a. The Agency shall develop a Code of Conduct for the return of illegally present third-country nationals which shall apply during all joint return operations coordinated by the Agency, describing common standardised procedures which should simplify the organisation of joint return operations and assure return in a humane manner and with full respect for fundamental rights, in particular the principles of human dignity, prohibition of torture and of inhuman or degrading treatment or punishment, the right to liberty and security and the rights to the protection of personal data and non-discrimination. 1b. The Code of Conduct shall in particular pay attention to the obligation set out in Article 8(6) of Directive 2008/115/EC to provide for an effective forced-return monitoring system and to the Fundamental Rights Strategy referred to in Article 26a(1) of this Regulation. The monitoring of joint return operations should be carried out on the basis of objective and transparent criteria and cover the whole joint return operation from the pre-departure phase until the hand-over of the returnees in the country of return. 1c. Member States shall regularly inform the Agency of their needs for assistance or coordination by the Agency. The Agency shall draw up a rolling operational plan to provide the requesting Member States with the necessary operational support, including technical equipment referred to in Article 7(1). The Management Board shall decide in accordance with Article 24 on a proposal of the Executive Director, on the content and modus operandi of the rolling operational plan. 2. The Agency shall cooperate with the competent authorities of the third countries referred to in Article 14 to identify best practices on the acquisition of travel documents and the return of illegally present third-country nationals. Article 9 elaborates Frontex’s mandate to assist with joint return operations by air (above, Article 2, MN 6). Article 9(1) of the original version referred exclusively to Frontex ‘assistance’ in organising what were termed ‘joint return operations of Member States’. That was a weaker formulation than the Commission proposal, which would have permitted Frontex to co-ordinate or organise return operations.74 After amendments in 2011, Frontex coordination is now provided for, if requested by participating Member States.75 In particular, Frontex’s role may extend to chartering the aircraft to be used in return operations, and it may finance these operations in whole or in part. 2 Any Frontex action in this area is subject to the EU’s ‘return policy’. The core of that policy is Directive 2008/115, which lays down standards to be met by Member States when they return third-country nationals who lack immigration permission.76 Also relevant is Council Decision 2004/573/EC, which lays down ground-rules for the coordination of join return flights among member states.77 1

74 Mitsilegas, in Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice, p. 370. Compare COM(2003) 687, p. 21 and Council doc. 9018/04 of 30 April 2004, p. 11. 75 The Commission proposal referred to ‘coordination for organising joint return operations’: COM(2010) 61, p. 26. The Parliament initially proposed the eventual formulation, ‘the coordination or the organisation of joint return operations’: see Council doc. 7961/11 of 25 March 2011, p. 62. 76 OJ 2008 L 348/98. 77 OJ 2004 L 261/28.

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Art. 10

Frontex Regulation (EC) No 2007/2004

Part B IV

Amendments to Article 9 in 2011 sought to strengthen the protection of funda- 3 mental rights in the context of return operations. Frontex is to ensure that financial support for Member States is conditional upon their full respect for the ChFR (Article 9(1)). A Code of Conduct for return operations is to be developed which will inter alia ensure return ‘in a humane manner’, and with full respect for fundamental rights’, including human dignity, the prohibition of torture and inhuman or degrading treatment or punishment, liberty and security, the protection of personal data, and nondiscrimination (Article 9(1a)). The Code of Conduct is also to ‘pay particular attention’ to the Frontex Fundamental Rights Strategy provided for in Article 26a, below (Article 9(1)(b)).78 Article 9(1b) makes provision for the monitoring of return operations. The matters 4 to which the Code of Conduct is to ‘pay particular attention’ include the obligation in Article 8(6) of the Return Directive that Member States have a ‘forced-return monitoring system’. One implication is that Frontex is to require Member States to engage in effective monitoring, and that is indeed the position taken in the 2013 Code of Conduct. To the extent that Frontex itself has the organisational lead, a different conclusion could be drawn, that it should also carry out the monitoring on the Member States’ behalf. In relation to the content of the monitoring, Article 9(1b) provides that it should be based on ‘objective and transparent criteria’, and that it should cover the whole process, from the pre-departure phase to the hand-over in the country of return. To this, the 2013 Code of Conduct adds that monitoring should ‘involve’ independent organisations.79

Article 10 Tasks and powers of guest officers 1. Guest officers shall have the capacity to perform all tasks and exercise all powers for border checks or border surveillance in accordance with Regulation (EC) No 562/ 2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)(15), and that are necessary for the realisation of the objectives of that Regulation. 2. While performing their tasks and exercising their powers, guest officers shall comply with Union and international law, and shall observe fundamental rights and the national law of the host Member State. 3. Guest officers may only perform tasks and exercise powers under instructions from and, as a general rule, in the presence of border guards of the host Member State. 4. Guest officers shall wear their own uniform while performing their tasks and exercising their powers. They shall wear a blue armband with the insignia of the European Union and the Agency on their uniforms, identifying them as participating in a joint operation or pilot project. For the purposes of identification vis-a`-vis the national authorities of the host Member State and its citizens, guest officers shall at all times carry an accreditation document, as provided for in Article 10a, which they shall present on request.

78 The Code was adopted on 7 October 2013, and is available at http://frontex.europa.eu/assets/ Publications/General/Code_of_Conduct_for_Joint_Return_Operations.pdf [last accessed 8 July 2015]. 79 Ibid., Article 13(2). (15) OJ L 105, 13.4.2006, p. 1.

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5. By way of derogation from paragraph 2, while performing their tasks and exercising their powers, guest officers may carry service weapons, ammunition and equipment as authorised according to the home Member State’s national law. However, the host Member State may prohibit the carrying of certain service weapons, ammunition and equipment, provided that its own legislation applies the same prohibition to its own border guards. The host Member State shall, in advance of the deployment of the guest officers, 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 States. 6. By way of derogation from paragraph 2, while performing their tasks and exercising their powers, guest officers shall be authorised to use force, including service weapons, ammunition and equipment, with the consent of the home Member State and the host Member State, in the presence of border guards of the host Member State and in accordance with the national law of the host Member State. 7. By way of derogation from paragraph 6, service weapons, ammunition and equipment may be used in legitimate self-defence and in legitimate defence of guest officers or of other persons, in accordance with the national law of the host Member State. 8. For the purpose of this Regulation, the host Member State may authorise guest officers to consult its national and European databases which are necessary for border checks and surveillance. The guest officers shall consult only those data which are required for performing their tasks and exercising their powers. The host Member State shall, in advance of the deployment of the guest officers, inform the Agency of the national and European databases which may be consulted. The Agency shall make this information available to all Member States participating in the deployment. 9. The consultation as referred to in paragraph 8 shall be carried out in accordance with Community law and the national law of the host Member State in the area of data protection. 10. Decisions to refuse entry in accordance with Article 13 of Regulation (EC) No 562/2006 shall be taken only by border guards of the host Member State. Article 10 is concerned with the legal position of ‘guest officers’. That term is defined by Article 1a(6) to mean officers of a Member State other than a host state, who are participating in joint operations or pilot projects. (In relation to rapid interventions, see MN 8 to this Article.) In its original version, Article 10 contemplated the exercise of executive powers both by Frontex staff and by other Member States’ officers. The 2007 Regulation removed this reference to the possibility of executive power being exercised by Frontex staff. 2 Article 10(1) provides that guest officers are permitted to carry out all tasks, and to exercise all powers, in connection with border control and surveillance, if these are ‘in accordance with’ the Schengen Borders Code, or are necessary for the realisation of its objectives. Article 10(1) ensures that guest officers act under EU law alone, and accordingly that they are not at the disposal of the host member state for other tasks.80 3 The statement of the applicable legal framework in Article 10(2) has had three different versions. In 2004, the only paragraph of Article 10 stated simply that what would now be termed guest officers were ‘subject to the national law of the host Member State.’ In 2007, the new Article 10(2) was amended to state that guest officers had to comply with EC law as well. In addition to replacing that with a reference to EU law, the 2011 amending Regulation added references to international law and funda1

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On the first of these points, see Mungianu, EJML 15 (2013), p. 382.

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Art. 10a

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mental rights. (For the meaning of those terms, see Article 1a, above, MN 20 and 19, respectively). Article 10(3), added in 2007, requires that guest officers carry out their activities ‘under instructions from’ border officials of the host state. They are also ‘as a general rule’ to carry out their activities in the presence of host state officials. Under Article 10(4), added in 2007, guest officers wear their own uniform, with a blue armband bearing the insignia of the EU and of Frontex. They are also to carry an accreditation document – the details of which are specified in Article 10a of the Regulation (below) – to enable them to identify themselves to the authorities of the host state, and to ‘its citizens’. Articles 10(5), (6) and (7), added in 2007, lay down a special regime in relation to service weapons and the use of force. Article 10(5) provides that a guest officer may carry service weapons, ammunition and equipment only if that is authorised by their home state law, and only if the host state law permits these to be carried by its own officers. Article 10(6) sets out the general rule that the use of force by guest officers – including the use of service weapons, etc – is permitted only with the consent of both states, only in the presence of home state border officials, and only in accordance with the host state’s law. Article 10(7) then provides a partial exception to that rule, that service weapons, etc. may be used in self-defence, or in defence of another person, if that is in accordance with the host state’s law. Article 10(10), added in 2007, provides that any decision to refuse entry must be taken by the host state’s own border officials. One implication is that guest officers involved in border checks may permit someone to enter, if that is compatible with the Schengen Borders Code. The involvement of guest officers in rapid interventions is not covered by Article 10, but instead by similar provisions in Article 6 of Regulation 863/2007. The only substantive differences concern the general legal obligations upon guest officers. Whereas Article 10(2) of the Frontex Regulation refers in general terms to EU law, international law, fundamental rights and national law, Article 6(2) of Regulation 863/ 2007 is silent in relation to these sources.

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Article 10a Accreditation document 1. 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 European Union to guest officers for the purpose of identifying them and as proof of the holder’s rights to perform the tasks and exercise the powers as referred to in Article 10(1). The document shall include the following features of the guest officer: (a) name and nationality; (b) rank; and (c) a recent digitised photograph. 2. The document shall be returned to the Agency at the end of the joint operation or pilot project. Article 10a provides for the accreditation document referred to in Article 10 (above, 1 MN 5). This is to be issued to guest officers by Frontex, in cooperation with the host Member State of the operation. It is to be in an official language of the host Member Ryan

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Part B IV Art. 10c

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State81 and another official language of the EU institutions. The document is to refer to the guest officer’s name and nationality82, and their rank, and is to include a recent digitised photograph.

Article 10b Civil liability 1. Where guest officers 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 gross negligence or wilful misconduct, the host Member State may approach the home Member State in order to have any sums it has paid to the victims or persons entitled on their behalf reimbursed by the home Member State. 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 misconduct. 4. Any dispute between Member States relating to the application of paragraphs 2 and 3 which cannot be resolved by negotiations between them shall be submitted by them to the Court of Justice of the European Communities in accordance with Article 239 of the Treaty. 5. Without prejudice to the exercise of its rights vis-a`-vis third parties, the Agency shall meet costs related to damage caused to the Agency’s equipment during deployment, except in cases of gross negligence or wilful misconduct. 1

Article 10b, added in 2007, concerns civil liability arising out of Frontex operations. Article 10b(1) provides that, where a guest officer causes damage during a Frontex operation, liability falls on the host Member State, and not on the home Member State or Frontex. Where the damage is the result of gross negligence or wilful misconduct, the host Member State may approach the home sate for reimbursement (Article 10b(2)). Member States are required to waive any legal rights they may have towards one another concerning damage they suffer, except in cases of gross negligence or wilful misconduct (Article 10b(3)). Equally, Frontex is to bear the costs of damage caused to its own equipment, except in cases of gross negligence or wilful misconduct (Article 10b(4)).

Article 10c Criminal liability During the deployment of a joint operation or a pilot project, guest officers shall be treated in the same way as officials of the host Member State with regard to any criminal offences that might be committed against them or by them. 1

Article 10c, added in 2007, provides that the criminal law of a host Member State applies fully to guest officers. This is the case both for offences they might commit, and for offences potentially committed against them. 81

Article 10a says ‘the official language, though in some states there is more than one. The Regulation does not contemplate the possibility that an official might have a different nationality to that of their home state. 82

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Art. 12

Frontex Regulation (EC) No 2007/2004

Part B IV

Article 11 This provision dealing with the exchange of information has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 11a This provision dealing with data protection has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 11b This provision, dealing with the processing of personal data in joint return operations, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 11c This provision, dealing with the processing of personal data collected during joint operations, pilot projects and rapid interventions, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 11ca This provision, dealing with the processing of personal data in the framework of EUROSUR, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 11d This provision, dealing with classified and sensitive information, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 12 Cooperation with Ireland and the United Kingdom 1. The Agency shall facilitate operational cooperation of the Member States with Ireland and the United Kingdom in matters covered by its activities and to the extent required for the fulfilment of its tasks set out in Article 2(1). Ryan

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2. Support to be provided by the Agency pursuant to Article 2(1)(f) shall cover the organisation of joint return operations of Member States in which Ireland or the United Kingdom, or both, also participate. 3. The application of this Regulation to the borders of Gibraltar shall be suspended until the date on which an agreement is reached on the scope of the measures concerning the crossing by persons of the external borders of the Member States. Article 12(1) permits Frontex to facilitate co-operation, within its remit, between the Schengen states and Ireland and the UK. By virtue of Article 12(2), Frontex may also provide support to those states in connection with joint return operations. 2 Article 12(3) has the effect of excluding ‘the borders of Gibraltar’ from Frontex’s remit. This provision is necessary because Gibraltar is part of the EU, but outside of the Schengen zone, and its frontier with Spain would otherwise be classed as an external border. (See above, Article 1a MN 4). As is indicated in recital 28 to the Regulation, the background to this provision is a dispute between the UK and Spain as to the location of the territorial frontier between Gibraltar and Spain. 1

Article 13 This provision, dealing with cooperation with Union agencies and bodies and international organisations, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 14 Facilitation of operational cooperation with third countries and cooperation with competent authorities of third countries 1. In matters covered by its activities and to the extent required for the fulfilment of its tasks, the Agency shall facilitate operational cooperation between Member States and third countries, within the framework of the external relations policy of the Union, including with regard to human rights. The Agency and the Member States shall comply with norms and standards at least equivalent to those set by Union legislation also when cooperation with third countries takes place on the territory of those countries. The establishment of cooperation with third countries shall serve to promote European border management standards, also covering respect for fundamental rights and human dignity. 2. The Agency may cooperate with the authorities of third countries competent in matters covered by this Regulation within the framework of working arrangements concluded with those authorities, in accordance with the relevant provisions of the TFEU. Those working arrangements shall be purely related to the management of operational cooperation. 3. The Agency may deploy its liaison officers, who should enjoy the highest possible protection to carry out their duties, in third countries. They shall form part of the local or regional cooperation networks of immigration liaison officers of the Member States set up pursuant to Council Regulation (EC) No 377/2004 of 19 February 2004 on the creation of an immigration liaison officers network(18). Liaison (18)

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Art. 14

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officers shall only be deployed to third countries in which border management practices comply with minimum human rights standards. Their deployment shall be approved by the Management Board. Within the framework of the external relations policy of the Union, priority for deployment should be given to those third countries, which on the basis of risk analysis constitute a country of origin or transit regarding illegal migration. On a reciprocal basis the Agency may receive liaison officers posted by those third countries also, for a limited period of time. The Management Board shall adopt, on a proposal of the Executive Director and in accordance with Article 24, the list of priorities on a yearly basis. 4. The tasks of the Agency’s liaison officers shall include, in compliance with Union law and in accordance with fundamental rights, establishing and maintaining contacts with the competent authorities of the third country to which they are assigned with a view to contributing to the prevention of and fight against illegal immigration and the return of illegal migrants. 5. The Agency may benefit from Union funding in accordance with the provisions of the relevant instruments supporting the external relations policy of the Union. It may launch and finance technical assistance projects in third countries regarding matters covered by this Regulation. 6. The Agency may also, with the agreement of the Member State(s) concerned invite observers from third countries to participate in its activities referred to in Articles 3, 4 and 5, to the extent that their presence is in accordance with the objectives of those activities, may contribute to improving cooperation and the exchange of best practices, and does not affect the overall safety of those activities. The participation of those observers may take place only with the agreement of the Member State(s) concerned regarding the activities referred to in Articles 4 and 5 and only with the agreement of the host Member State regarding those referred to in Article 3. Detailed rules on the participation of observers shall be included in the operational plan referred to in Article 3a(1). Those observers shall receive the appropriate training from the Agency prior to their participation. 7. When concluding bilateral agreements with third countries as referred to in Article 2(2), Member States may include provisions concerning the role and competence of the Agency, in particular regarding the exercise of executive powers by members of the teams deployed by the Agency during the joint operations or pilot projects referred to in Article 3. 8. The activities referred to in paragraphs 2 and 3 of this Article shall be subject to receiving a prior opinion of the Commission, and the European Parliament shall be fully informed of those activities as soon as possible. Article 14(1) permits Frontex to facilitate Member State operational co-operation 1 with third countries (i. e. non-Schengen states). Amendments in 2011 added various fundamental rights-oriented qualifications to this provision. The second paragraph of Article 14(1) requires Frontex and the Member States to ‘comply with norms and standards at least equivalent to those set by Union legislation’ if any cooperation ‘takes place on the territory of’ third state. This provision lacks specificity as to the norms and standards in question, while leaving open the possibility that the third state itself might act in a manner that EU law would not permit. Two more general statements concerning fundamental rights within Article 14(1) must be considered vague in their implications. According to its first paragraph, Frontex should act ‘within the framework’ of the EU’s external relations policy, ‘including with regard to human rights’. Its third paragraph adds that co-operation with third states Ryan

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‘shall serve to promote European border management standards’, including ‘respect for fundamental rights and human dignity’. 2 Article 14(2) permits Frontex to develop working arrangements with the authorities of third states. Though it is stated that these arrangements are to respect ‘the relevant provisions of the TFEU’, it is not immediately apparent which provisions are contemplated. Under Article 14(8), there is a duty to request the opinion of the Commission prior to any such arrangements, and to keep the Parliament fully informed of them.

CHAPTER III STRUCTURE Article 15 This provision, dealing with the legal status and location of Frontex, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 15a This provision, dealing with a headquarters agreement for Frontex, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 16 This provision, dealing with specialised branches of Frontex, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 17 This provision, dealing with the Regulations applicable to Frontex staff, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 18 This provision, dealing with the privileges and immunities of Frontex, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 19 This provision, dealing with the civil liability rules applicable to Frontex, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text. 232

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Art. 20

Frontex Regulation (EC) No 2007/2004

Part B IV

Article 20 Powers of the Management Board 1. The Agency shall have a Management Board. 2. The Management Board shall: (a) appoint the Executive Director on a proposal from the Commission in accordance with Article 26; (b) before 31 March each year, adopt the general report of the Agency for the previous year and forward it by 15 June at the latest to the European Parliament, the Council, the Commission, the European Economic and Social Committee and the Court of Auditors. The general report shall be made public; (c) before 30 September each year, and after receiving the opinion of the Commission, adopt, by a three-quarters majority of its members with a right to vote, the Agency’s programme of work for the coming year and forward it to the European Parliament, the Council and the Commission; this programme of work shall be adopted according to the annual Community budgetary procedure and the Community legislative programme in relevant areas of the management of external borders; (d) establish procedures for taking decisions related to the operational tasks of the Agency by the Executive Director; (e) carry out its functions relating to the Agency’s budget pursuant to Articles 28, 29(5), (9) and (11), Article 30(5) and Article 32; (f) exercise disciplinary authority over the Executive Director and over the Deputy Director, in agreement with the Executive Director; (g) establish its Rules of Procedure; (h) establish the organisational structure of the Agency and adopt the Agency’s staff policy, in particular the multiannual staff policy plan. In accordance with the relevant provisions of the Commission Regulation (EC, Euratom) No 2343/2002 of 19 November 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities(19) the multiannual staff policy plan shall be submitted to the Commission and the budgetary authority after receiving a favourable opinion of the Commission; (i) adopt the Agency’s multiannual plan aiming at outlining the future long term strategy regarding the activities of the Agency. 3. Proposals for decisions on specific activities to be carried out at, or in the immediate vicinity of, the external border of any particular Member State shall require a vote in favour of their adoption by the Member of the Management Board representing that Member State. 4. The Management Board may advise the Executive Director on any matter strictly related to the development of operational management of the external borders, including activities related to research provided for in Article 6. 5. Should Ireland and/or the United Kingdom request to participate in the Agency’s activities, the Management Board shall decide thereon. The Management Board shall take its decision on a case-by-case basis by an absolute majority of its members with a right to vote. In its decision, the Manage(19)

OJ L 357, 31.12.2002, p. 72.

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ment Board shall consider if the participation of Ireland and/or the United Kingdom contributes to the achievement of the activity in question. The decision shall set out the financial contribution of Ireland and/or the United Kingdom to the activity for which a request for participation has been made. 6. The Management Board shall forward annually to the budgetary authority any information relevant to the outcome of the evaluation procedures. 7. The Management Board may establish an Executive Bureau 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 when necessary, because of urgency, to take certain provisional decisions on behalf of the Management Board. The powers of the Frontex Management Board are set out in Article 20(2). These include the appointment of the Executive Director, the adoption of Frontex’s annual general report, and the adoption of its annual programme of work. The position of individual Member State is protected by Article 20(3), which requires that a decision to approve activities ‘at, or in the immediate vicinity of’ its external border require that state’s representative on the Management Board to vote in favour. 2 The position of Ireland and the UK is addressed in Article 20(5). If they request to participate in Frontex activities, that must be approved on a case-by-case basis, and requires an absolute majority of Management Board members to vote in favour. 1

Article 21 Composition of the Management Board 1. Without prejudice to paragraph 3, the Management Board shall be composed of one representative of each Member State and two representatives of the Commission. 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/her absence. The Commission shall appoint two members and their 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 their degree of high level relevant experience and expertise in the field of operational cooperation on border management. 3. Countries associated with the implementation, application and development of the Schengen acquis shall participate in the Agency. They shall have one representative and one alternate each in the Management Board. Under the relevant provisions of their association agreements, arrangements have been developed that specify the nature and extent of, and the detailed rules for, the participation by those countries in the work of the Agency, including provisions on financial contributions and staff. Article 21(1) provides for the composition of the Management Board. It is made up of one representative for each participating Member State, together with two Commission representatives. Non-EU associated states – i. e. Iceland, Liechtenstein, Norway and Switzerland – also have a member on the board (Article 21(3)). A separate provision states that Ireland and the UK must be invited to attend Management Board meetings (Article 23(4)). 2 There is a general eligibility rule, that members of the Management Board should have a high level of experience and expertise in relation to of operational cooperation in border management (Article 21(2)). 1

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Art. 26a

Frontex Regulation (EC) No 2007/2004

Part B IV

Article 22 This provision, dealing with the chairmanship of the Management Board, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 23 This provision, dealing with meetings of the Management Board, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 24 This provision, dealing with voting on the Management Board, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 25 This provision, dealing with the functions and powers of the Executive Director, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 26 This provision, dealing with the appointment of Frontex senior officials, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 26a Fundamental Rights Strategy 1. The Agency shall draw up and further develop and implement its Fundamental Rights Strategy. The Agency shall put in place an effective mechanism to monitor the respect for fundamental rights in all the activities of the Agency. 2. A Consultative Forum shall be established by the Agency to assist the Executive Director and the Management Board in fundamental rights matters. The Agency shall invite the European Asylum Support Office, the Fundamental Rights Agency, the United Nations High Commissioner for Refugees and other relevant organisations to participate in the Consultative Forum. On a proposal by the Executive Director, the Management Board shall decide on the composition and the working methods of the Consultative Forum and the modalities of the transmission of information to the Consultative Forum.

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The Consultative Forum shall be consulted on the further development and implementation of the Fundamental Rights Strategy, Code of Conduct and common core curricula. The Consultative Forum shall prepare an annual report of its activities. That report shall be made publicly available. 3. A Fundamental Rights Officer shall be designated by the Management Board and shall have the necessary qualifications and experience in the field of fundamental rights. He/she shall be independent in the performance of his/her duties as a Fundamental Rights Officer and shall report directly to the Management Board and the Consultative Forum. He/she shall report on a regular basis and as such contribute to the mechanism for monitoring fundamental rights. 4. The Fundamental Rights Officer and the Consultative Forum shall have access to all information concerning respect for fundamental rights, in relation to all the activities of the Agency. 1

The insertion of Article 26a was among the main fundamental rights-related innovations made by the 2011 Regulation. It provides for Frontex to draw up a fundamental rights strategy, and to have in place an effective mechanism for monitoring respect for fundamental rights in its activities (both in Article 26a(1)). A Consultative Forum on fundamental rights matters is to be set up, in which the European Asylum Support Office, the EU Fundamental Rights Agency, UNHCR and ‘other relevant organisations’ are to be invited to participate (Article 26a(2)).83 Frontex should also appoint a Fundamental Rights Officer, who will report directly to the Management Board and to the Consultative Forum (Article 26a(3)).

Article 27 This provision, dealing with translation, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 28 This provision, dealing with transparency and communication, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

CHAPTER IV FINANCIAL REQUIREMENTS Article 29 This provision, dealing with the Frontex budget, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text. 83 The list of organisations represented on the Consultative Forum may be found here: http:// frontex.europa.eu/partners/consultative-forum/general-information/[last accessed 8 July 2015].

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Art. 34

Frontex Regulation (EC) No 2007/2004

Part B IV

Article 30 This provision, dealing with Implementation and control of the Frontex budget, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 31 This provision, dealing with arrangements for combating fraud, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 32 This provision, dealing with the financial rules applicable to Frontex, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

CHAPTER V FINAL PROVISIONS Article 33 This provision, dealing with the evaluation of Frontex, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 34 This provision, dealing with the entry into force of the Regulation, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

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V. Regulation (EU) No 656/2014 of the European Parliament and of the Council of 15 May 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 at the External Borders of the Member States of the European Union Official Journal L 189, 27/06/2014, p. 93–107 Selected Bibliography: Barnes, ‘The International Law of the Sea and Migration Control’ in: Ryan/ Mitsilegas (eds), Extraterritorial Immigration Control: Legal Challenges (Brill, 2010), p. 103–150; Den Heijer, ‘Reflections on Refoulement and Collective Expulsion in the Hirsi Case’, IJRL 25 (2013), p. 265; Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge University Press, 2009); Moreno-Lax, ‘Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of EU Member States’ Obligations Accruing at Sea’, IJRL 23 (2011), p. 174–220; Moreno-Lax, ‘Hirsi Jamaa and Others v Italy or the Strasbourg Court versus Extraterritorial Migration Control?’, Human Rights Law Review 12 (2012), p. 574–598; Pallis, ‘Obligations of States towards Asylum Seekers at Sea: Interactions and Conflicts Between Legal Regimes’, IJRL 14 (2002), p. 330–364; Papastavridis, The Interception of Vessels on the High Seas: Contemporary Challenges to the Legal Order of the Oceans (Hart, 2014); Ryan, ‘Extraterritorial Immigration Control: What Role for Legal Guarantees?’, in: Ryan/Mitsilegas (eds), Extraterritorial Immigration Control: Legal Challenges (Brill, 2010), p. 3–38; Scovazzi, ‘Human Rights and Immigration at Sea’, in: Rubio-Marı´n (ed), Human Rights and Immigration (OUP, 2014), p. 212–260; Trevisanut, ‘Search and Rescue Operations in the Mediterranean: Factor of Cooperation or Conflict?’, International Journal of Marine and Coastal Law 25 (2010), p. 523–542.

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 point (d) of Article 77(2) thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Acting in accordance with the ordinary legislative procedure(1), Whereas: (1) The objective of Union policy in the field of the Union external borders is to ensure the efficient monitoring of the crossing of external borders including through border surveillance, while contributing to ensuring the protection and saving of lives. The purpose of border surveillance is to prevent unauthorised border crossings, to counter cross-border criminality and to apprehend or take other measures against those persons who have crossed the border in an irregular manner. Border surveillance should be effective in preventing and discouraging persons from circumventing the checks at border crossing points. To this end, border surveillance is not limited to the detection of attempts at unauthorised border crossings but equally extends to steps such as intercepting vessels suspected of trying to gain entry to the Union without submitting to border checks, as well as arrangements intended to address situations such as search and rescue that may arise during a border surveillance operation at sea and arrangements intended to bring such an operation to a successful conclusion. (1) Position of the European Parliament of 16 April 2014 (not yet published in the Official Journal) and decision of the Council of 13 May 2014.

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Sea Borders Regulation (EU) No 656/2014

(2) The policies of the Union in border management, asylum and immigration and their implementation should be governed by the principle of solidarity and fair sharing of responsibility between the Member States pursuant to Article 80 of the Treaty on the Functioning of the European Union (TFEU). Wherever necessary, Union acts adopted in the framework of those policies are to contain appropriate measures to give effect to that principle and promote burden-sharing including through the transfer, on a voluntary basis, of beneficiaries of international protection. (3) The scope of application of this Regulation should be limited to border surveillance operations carried out by Member States at their external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (‘the Agency’) established by Council Regulation (EC) No 2007/2004(2). Investigative and punitive measures are governed by national criminal law and the existing instruments of mutual legal assistance in the field of judicial cooperation in criminal matters in the Union. (4) The Agency is responsible for the coordination of operational cooperation between Member States in the field of management of the external borders, including as regards border surveillance. The Agency is also responsible for assisting Member States in circumstances requiring increased technical assistance at the external borders, taking into account the fact that some situations may involve humanitarian emergencies and rescue at sea. Specific rules with regard to border surveillance activities carried out by maritime, land and aerial units of one Member State at the sea border of other Member States or on the high seas in the context of operational cooperation coordinated by the Agency are necessary to further strengthen such cooperation. (5) Cooperation with neighbouring third countries is crucial to prevent unauthorised border crossings, to counter cross-border criminality and to avoid loss of life at sea. In accordance with Regulation (EC) No 2007/2004 and insofar as full respect for the fundamental rights of migrants is ensured, the Agency may cooperate with the competent authorities of third countries, in particular as regards risk analysis and training, and should facilitate operational cooperation between Member States and third countries. When cooperation with third countries takes place on the territory or the territorial sea of those countries, the Member States and the Agency should comply with norms and standards at least equivalent to those set by Union law. (6) The European Border Surveillance System (Eurosur) established by Regulation (EU) No 1052/2013 of the European Parliament and of the Council(3) aims to strengthen the information exchange and operational cooperation between Member States and with the Agency. That is to ensure that the situational awareness and reaction capability of Member States improves considerably, also with the support of the Agency, for the purposes of detecting, preventing and combating illegal immigration and cross-border crime and contributing to ensuring the protection and saving the lives of migrants at their external borders. When coordinating border surveillance operations, the Agency should provide Member States with information and analysis concerning those operations in accordance with that Regulation. (2) 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 L 349, 25.11.2004, p. 1). (3) Regulation (EU) No 1052/2013 of the European Parliament and of the Council of 22 October 2013 establishing the European Border Surveillance System (Eurosur) (OJ L 295, 6.11.2013, p. 11).

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(7) This Regulation replaces Council Decision 2010/252/EU(4) which was annulled by the Court of Justice of the European Union (‘the Court’) by its judgment of 5 September 2012 in Case C-355/10. In that judgment, the Court maintained the effects of Decision 2010/252/EU until the entry into force of new rules. Therefore, as of the day of entry into force of this Regulation, that Decision ceases to produce effects. (8) During border surveillance operations at sea, Member States should respect their respective obligations under international law, in particular the United Nations Convention on the Law of the Sea, the International Convention for the Safety of Life at Sea, the International Convention on Maritime Search and Rescue, the United Nations Convention against Transnational Organized Crime and its Protocol against the Smuggling of Migrants by Land, Sea and Air, the United Nations Convention relating to the Status of Refugees, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the United Nations Convention on the Rights of the Child and other relevant international instruments. (9) When coordinating border surveillance operations at sea, the Agency should fulfil its tasks in full compliance with relevant Union law, including the Charter of Fundamental Rights of the European Union (‘the Charter’), and relevant international law, in particular that referred to in recital 8. (10) In accordance with Regulation (EC) No 562/2006 of the European Parliament and of the Council(5) and general principles of Union law, any measure taken in the course of a surveillance operation should be proportionate to the objectives pursued, non-discriminatory and should fully respect human dignity, fundamental rights and the rights of refugees and asylum seekers, including the principle of non-refoulement. Member States and the Agency are bound by the provisions of the asylum acquis, and in particular of Directive 2013/32/EU of the European Parliament and of the Council(6) with regard to applications for international protection made in the territory, including at the border, in the territorial waters or in the transit zones of Member States. (11) The application of this Regulation should be without prejudice to Directive 2011/36/EU of the European Parliament and the Council(7), in particular as regards assistance to be given to victims of trafficking in human beings. (12) This Regulation should be applied in full compliance with the principle of nonrefoulement as defined in the Charter and as interpreted by the case-law of the Court and of the European Court of Human Rights. In accordance with that principle, no person should be disembarked in, forced to enter, conducted to or otherwise handed over to the authorities of a country where, inter alia, there is 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 (4) Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (OJ L 111, 4.5.2010, p. 20). (5) Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ L 105, 13.4.2006, p. 1). (6) 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 L 180, 29.6.2013, p. 60). (7) Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (OJ L 101, 15.4.2011, p. 1).

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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 serious risk of an expulsion, removal or extradition to another country in contravention of the principle of non-refoulement. (13) The possible existence of an arrangement between a Member State and a third country does not absolve Member States from their obligations under Union and international law, in particular as regards compliance with the principle of nonrefoulement, whenever they are aware or ought to be aware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that third country amount to substantial grounds for believing that the asylum seeker would face a serious risk of being subjected to inhuman or degrading treatment or where they are aware or ought to be aware that that third country engages in practices in contravention of the principle of non-refoulement. (14) During a border surveillance operation at sea, a situation may occur where it will be necessary to render assistance to persons found in distress. In accordance with international law, every State must require the master of a vessel flying its flag, in so far as he can do so without serious danger to the vessel, the crew or the passengers, to render assistance without delay to any person found at sea in danger of being lost and to proceed with all possible speed to the rescue of persons in distress. Such assistance should be provided regardless of the nationality or status of the persons to be assisted or of the circumstances in which they are found. The shipmaster and crew should not face criminal penalties for the sole reason of having rescued persons in distress at sea and brought them to a place of safety. (15) The obligation to render assistance to persons found in distress should be fulfilled by Member States in accordance with the applicable provisions of international instruments governing search and rescue situations and in accordance with requirements concerning the protection of fundamental rights. This Regulation should not affect the responsibilities of search and rescue authorities, including for ensuring that coordination and cooperation is conducted in such a way that the persons rescued can be delivered to a place of safety. (16) When the operational area of a sea operation includes the search and rescue region of a third country, the establishment of communication channels with the search and rescue authorities of that third country should be sought when planning a sea operation, thereby ensuring that those authorities will be able to respond to search and rescue cases developing within their search and rescue region. (17) Pursuant to Regulation (EC) No 2007/2004, border surveillance operations coordinated by the Agency are conducted in accordance with an operational plan. Accordingly, as regards sea operations, the operational plan should include specific information on the application of the relevant jurisdiction and legislation in the geographical area where the joint operation, pilot project or rapid intervention takes place, including references to Union and international law regarding interception, rescue at sea and disembarkation. The operational plan should be established in accordance with the provisions of this Regulation governing interception, rescue at sea and disembarkation in the context of border surveillance operations at sea coordinated by the Agency and having regard to the particular circumstances of the operation concerned. The operational plan should include procedures ensuring that persons with international protection needs, victims of trafficking in human beings, unaccompanied minors and other vulnerable persons are identified and provided with appropriate assistance, including access to international protection.

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(18) The practice under Regulation (EC) No 2007/2004 is that for each sea operation, a coordination structure is established within the host Member State, composed of officers from the host Member State, guest officers and representatives of the Agency, including the Coordinating Officer of the Agency. This coordination structure, usually called International Coordination Centre, should be used as a channel for communication between the officers involved in the sea operation and the authorities concerned. (19) This Regulation respects the fundamental rights and observes the principles recognised by Articles 2 and 6 of the Treaty on European Union (TEU) and by the Charter, in particular respect for human dignity, the right to life, the prohibition of torture and of inhuman or degrading treatment or punishment, the prohibition of trafficking in human beings, the right to liberty and security, the right to the protection of personal data, the right to asylum and to protection against removal and expulsion, the principles of non-refoulement and non-discrimination, the right to an effective remedy and the rights of the child. This Regulation should be applied by Member States and the Agency in accordance with those rights and principles. (20) Since the objective of this Regulation, namely to adopt specific rules for the surveillance of the sea borders by border guards operating under the coordination of the Agency, cannot be sufficiently achieved by the Member States due to the differences in their laws and practices, but can rather, by reason of the multinational character of the operations, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective. (21) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application. Given that this Regulation builds upon the Schengen acquis, Denmark shall, in accordance with Article 4 of that Protocol, decide within a period of six months after the Council has decided on this Regulation whether it will implement it in its national law. (22) As regards Iceland and Norway, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis(8) which fall within the area referred to in Article 1, point A, of Council Decision 1999/437/EC(9). (23) As regards Switzerland, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis(10) which fall within the area referred to in Article 1, point A, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC(11). (8)

OJ L 176, 10.7.1999, p. 36. Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis (OJ L 176, 10.7.1999, p. 31). (10) OJ L 53, 27.2.2008, p. 52. (11) Council Decision 2008/146/EC of 28 January 2008 on the conclusion, on behalf of the European Community, of the Agreement between the European Union, the European Community and the Swiss (9)

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(24) As regards Liechtenstein, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis(12), which fall within the area referred to in Article 1, point A, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2011/350/EU(13). (25) This Regulation constitutes a development of the provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC(14); the United Kingdom is therefore not taking part in its adoption and is not bound by it or subject to its application. (26) This Regulation constitutes a development of the provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC(15); Ireland is therefore not taking part in its adoption and is not bound by it or subject to its application, HAVE ADOPTED THIS REGULATION:

CHAPTER I GENERAL PROVISIONS Article 1 Scope This Regulation shall apply to border surveillance operations carried out by Member States at their external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union. Content I. General Remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Legislative history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Textual analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis (OJ L 53, 27.2.2008, p. 1). (12) OJ L 160, 18.6.2011, p. 21. (13) Council Decision 2011/350/EU of 7 March 2011 on the conclusion, on behalf of the European Union, of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, relating to the abolition of checks at internal borders and movement of persons (OJ L 160, 18.6.2011, p. 19). (14) Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis (OJ L 131, 1.6.2000, p. 43). (15) Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis (OJ L 64, 7.3.2002, p. 20).

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I. General Remarks Regulation 656/2014 is known as the ‘Sea Borders Regulation’. It sets out a legal framework for Member States, and vessels under their command, that are involved in the surveillance of the Schengen external sea border, within operations co-ordinated by Frontex. Its provisions cover both the interception of vessels for border control purposes, and the associated rescue of persons at sea. 2 The background to the Regulation is a sustained pattern of irregular migration by sea, since around 2000, towards southern EU states.1 These phenomena have principally involved departures from Morocco, Senegal and Mauritius towards Spanish territory; from Libya and Tunisia towards Italian territory and Malta; and, from Turkey towards Greece. A central response to migration along irregular sea routes has been arrangements by Italy and Spain with states of departure, aimed at prevention of departure and/ or interception-and return.2 These arrangements have typically involved Frontex in providing direct or indirect support for their implementation. 3 An especially controversial interception-and-return arrangement operated between Italy and Libya in 2009 and 2010.3 That arrangement was effectively declared contrary to the ECHR in Hirsi Jamaa in 2012.4 In its judgment, the ECtHR firstly held that ECHR principles apply when a contracting state’s vessel intercepts or rescues migrants on the high seas, as it thereby acquires de jure and de facto control over them. It went on to find that the actual return of the applicants to Libya breached the prohibition on inhuman or degrading treatment or punishment in Article 3 ECHR; the prohibition on collective expulsion in Article 4 of Protocol 4 to the ECHR; and, the guarantee of effective remedies in Article 13 ECHR. The principles laid down in Hirsi Jamaa govern Member State and Frontex operations at sea, both because of the ECHR framework, and because of equivalent provisions of the ChFR.5 Moreover, as the situation of irregular migrants in Libya does not appear to have improved since 2009–2010, the Hirsi Jamaa ruling presumably continues to preclude Member State vessels from returning persons intercepted or rescued at sea to Libya. 4 The deaths of migrants at sea, and the related question of provision of search and rescue by Member States and Frontex, have also been recurrent subjects of political controversy.6 That has been especially true in the period of conflict in Libya since 2011, 1

1 See Ryan in Ryan/Mitsilegas (eds), Extraterritorial Immigration Control: Legal Challenges, p. 31–35; Fargues/Bonfanti, When the best option is a leaky boat: Why migrants risk their lives crossing the Mediterranean and what Europe is doing (Migration Policy Centre, European University Institute, 2014). 2 See the chapters by Di Pascale, ‘Migration control at sea: The Italian case’, (p. 281–309), Garcı´a Andrade, ‘Extraterritorial strategies to tackle irregular immigration by sea: A Spanish perspective’ (p. 318–333), in: Ryan/Mitsilegas (eds), Extraterritorial Immigration Control: Legal Challenges. 3 See Di Pascale, ‘Italy and Unauthorized Migration: Between State Sovereignty and Human Rights Obligations’, in: Rubio-Marı´n (ed), Human Rights and Immigration (OUP, 2014), p. 303–305; Triandafyllidou/Dimitriadi ‘Migration Management at the Outposts of the European Union: The Case of Italy’s and Greece’s Borders’, Griffith Law Review 22 (2013), p. 598, 604–608. 4 ECtHR (Grand Chamber), Judgement of 23 February 2012, No. 27765/09,. Hirsi Jamaa and others v. Italy. For a detailed discussion, see den Heijer, IJRL 25 (2013), p. 265; Moreno-Lax, Human Rights Law Review 12 (2012), p. 574–598, Scovazzi, in Rubio-Marı´n (ed), Human Rights and Immigration, p. 252–257. 5 See Articles 4, 19 and 47 ChFR. Among the 32 EU and associated Schengen states, Greece, Switzerland and the UK are not parties to Protocol 4 to the ECHR. For those states, the prohibition on collective expulsion in Article 19(1) CFREU is therefore especially relevant. 6 See Fargues/di Bartolomeo, Drowned Europe (Migration Policy Centre, European University Institute, 2015), p. 2, for an estimate of 18,043 deaths in the Mediterranean (including routes towards the Canary Islands), between 1998 and April 2015. This figure is based upon information gathered by the Fortress Europe NGO.

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as conditions on the ground have enabled migrant smuggling to take place, which has in turn led to a substantial loss of life in the Central Mediterranean. After the death of at least 359 persons off the island of Lampedusa on 3 October 2013, Italy responded through a large-scale search and rescue operation, known as Mare Nostrum. In October 2014, that was replaced by Operation Triton, coordinated by Frontex, focused on border control. Two further tragedies off Libya in April 2015, which together led to the loss of an estimated 1200 persons, were followed by a European Council announcement of increased resources for Operation Triton.7 The ongoing controversy over deaths at sea may well have further implications for Frontex operations, and for the legal framework applicable to it.

II. Legislative history The EU legislative developments leading to the Sea Borders Regulation began with a call by the European Council in June 2009 for ‘clear rules of engagement’ for Frontex operations at sea.8 That led the Commission to propose, and the Council to adopt, Decision 2010/252/EU on sea border surveillance in the context of Frontex operations.9 This set out binding rules in relation to interceptions, and ‘guidelines’ in relation to rescue. Decision 2010/252 was adopted using the comitology procedure, relying on Article 12(5) of the Schengen Borders Code. During the procedure, the Parliament did not object to the Decision, but it nevertheless challenged the legality of reliance upon Article 12(5) before the Court of Justice.10 That action succeeded, with the Court concluding that the rules concerning interception and rescue required political choices, and were not merely ‘additional measures’ within the meaning of Article 12(5).11 The ruling maintained the effects of Decision 2010/252 for a ‘reasonable time’ until the entry into force of new rules. The effect of the successful challenge to Decision 2010/252 was that any follow-up EU measure on interception and rescue had to be based upon Treaty legislative powers. The eventual Sea Borders Regulation was adopted under Article 77(2)(d) TFEU concerning ‘the gradual establishment of an integrated management system for external borders’. That had also been among the legal bases relied upon for amendments to the Frontex Regulation in 2011 (see above Ryan, Frontex Regulation (EC) No 2007/2004, Article 1 MN 9). The content of the eventual Sea Borders Regulation differs from Decision 2010/252, however. One change is that the Commission’s proposal for the Regulation took into account the 2011 amendments to the Frontex Regulation, which expressly required Frontex to respect international obligations on search and rescue in its operations.12 (See above Ryan, Frontex Regulation (EC) No 2007/2004, Article 2 MN 3.) That permitted the Regulation to be binding in relation to each of interception and rescue. The Commission proposal also sought to take into account the implications of Hirsi Jamaa for both types of scenario.13 During the legislative process, the Parliament also 7

Special meeting of the European Council, 23 April 2015: Statement, para 3(a). Brussels European Council 18/19 June 2009: Presidency Conclusions, para 37. 9 OJ 2010 L 111/20. For a discussion, see Moreno-Lax, ‘The EU Regime on Interdiction, Search and Rescue, and Disembarkation: The Frontex Guidelines for Intervention at Sea’, International Journal of Marine and Coastal Law 25 (2010), p. 621–635. 10 See Chamon, ‘How the concept of essential elements of a legislative act continues to elude the Court: Parliament v. Council’, CMLR 50 (2013), p. 849–860. 11 ECJ, Parliament v. Council, C-355/10 EU:C:2012:516, para 78. 12 COM(2013) 197 final of 12 April 2013, p. 5. 13 Ibid., p. 4. 8

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proposed many amendments which came to be included in the compromise text agreed by it and the Council.

III. Textual analysis The statement of the Regulation’s scope in Article 1 suggests that it applies only to Member State operations. This is in line with the terms of Article 1 to the Frontex Regulation, which treats Member States as having primary responsibility for operations at the external borders (see above Ryan, Frontex Regulation (EC) No 2007/2004, Article 1, MN 14). At the same time, the Regulation applies only to Member State actions conducted in the context of Frontex operations. It follows that the principles in the Regulation, and their enforcement through EU law, do not apply where Member States engage in sea operations autonomously. 10 The Sea Borders Regulation applies only to operations concerned with border surveillance. The Commission’s proposal indicated that, within the Regulation, this concept was ‘not limited to the detection of attempts at irregular border crossing’, but also included interception measures and ‘arrangements intended to address situations such as search and rescue that may arise during a sea operation’.14 In the light of the controversy over deaths at sea (this Article, MN 4), it is significant that even that more extensive conception of ‘border surveillance’ does not cover operations whose sole or primary purpose is to prevent loss of life at sea. Nor do those kinds of operation appear to fall within Frontex’s overall remit, set out in the Frontex Regulation (see above Ryan, Frontex Regulation (EC) No 2007/2004, Article 1, MN 4). 9

Article 2 Definitions For the purposes of this Regulation the following definitions shall apply: (1) ‘Agency’ means the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union established by Regulation (EC) No 2007/2004; (2) ‘sea operation’ means a joint operation, pilot project or rapid intervention carried out by Member States for the surveillance of their external sea borders under the coordination of the Agency; (3) ‘host Member State’ means a Member State in which a sea operation takes place or from which it is launched; (4) ‘participating Member State’ means a Member State which participates in a sea operation by providing technical equipment, border guards deployed as part of the European Border Guard Teams or other relevant staff but which is not a host Member State; (5) ‘participating unit’ means a maritime, land or aerial unit under the responsibility of the host Member State or of a participating Member State that takes part in a sea operation; (6) ‘International Coordination Centre’ means the coordination structure established within the host Member State for the coordination of a sea operation; (7) ‘National Coordination Centre’ means the national coordination centre established for the purposes of the European Border Surveillance System (Eurosur) in accordance with Regulation (EU) No 1052/2013; 14

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(8) ‘operational plan’ means the operational plan referred to in Article 3a and Article 8e of Regulation (EC) No 2007/2004; (9) ‘vessel’ means any type of water craft, including boats, dinghies, floating platforms, non-displacement craft and seaplanes, used or capable of being used at sea; (10) ‘stateless vessel’ means a vessel without nationality or assimilated to a vessel without nationality when the vessel has not been granted by any State the right to fly its flag or when it sails under the flags of two or more States, using them according to convenience; (11) ‘Protocol against the Smuggling of Migrants’ means the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organised Crime signed in Palermo, Italy in December 2000; (12) ‘place of safety’ means a location where rescue operations are considered to terminate and where the survivors’ safety of life is not threatened, where their basic human needs can be met and from which transportation arrangements can be made for the survivors’ next destination or final destination, taking into account the protection of their fundamental rights in compliance with the principle of non-refoulement; (13) ‘Rescue Coordination Centre’ means a unit responsible for promoting efficient organisation of search and rescue services and for coordinating the conduct of search and rescue operations within a search and rescue region as defined in the International Convention on Maritime Search and Rescue; (14) ‘contiguous zone’ means a zone contiguous to the territorial sea as defined in Article 33 of the United Nations Convention on the Law of the Sea, where formally proclaimed; (15) ‘coastal Member State’ means a Member State in whose territorial sea or contiguous zone an interception takes place. The definition of ‘sea operation’ in Article 2(2) confirms that the Regulation is only concerned with border surveillance operations. In theory, these could take the form of joint operations, pilot projects or rapid interventions under Articles 3 and 8a of the Frontex Regulation (see the chapter on that Regulation). Frontex practice to date suggests that its operations at sea are very likely to take the form of joint operations. (The rest of the chapter assumes that only joint operations would be used.) The definition of ‘host Member State’ in Article 2(3) firstly covers states ‘in which’ a sea operation takes place. That presumably refers to operations in the state’s territorial sea. The definition also covers the Member State ‘from which’ an operation is ‘launched’. The same words appear in the Frontex Regulation, having been added by amendments in 2011 (see above Ryan, Frontex Regulation (EC) No 2007/2004, Article 1a, MN 6). The concept of a ‘participating Member State’ in Article 2(4) refers to Member States, other than the host state, which contribute to a sea operation, by providing technical equipment, border guards within a European Border Guard Team, or ‘other relevant staff’. The precise meaning of the last phrase is uncertain, as the Frontex Regulation does not cover Member State personnel other than border guards. In the context of the Sea Borders Regulation, it may refer to the crew of vessels and other technical support staff. The definition of a ‘participating unit’ in Article 2(5) covers Member State ‘maritime, land or aerial’ units that participate in sea operations. This confirms that it is Member State’ assets, rather than those of Frontex itself, which participate in Frontex co-ordinated operations. Ryan

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Article 2 distinguishes between three kinds of coordination centre. The ‘International Coordination Centre’ referred to in Article 2(6) is a structure established by the host state for a Frontex sea operation. The ‘National Coordination Centre’ referred to in Article 2(7) is the Member State structure for liaising with Frontex and other Member States within the Eurosur network (see above Ryan, Frontex Regulation (EC) No 2007/ 2004, Article 2, MN 6). The ‘Rescue Coordination Centre’ referred to in Article 2(13) concerns a state’s systems for the co-ordination of operations within a search and rescue area defined under the SAR Convention. The concept of ‘vessel’ in Article 2(9) is defined in a broad manner, to include ‘any type of water craft … used or capable of being used at sea.’ This definition presumably borrows from Article 3(d) of the Migrant Smuggling Protocol, according to which “vessel” shall mean any type of water craft … used or capable of being used as a means of transportation on water.’ The effect of Article 2(9) is to bring the interception of all such craft within the coverage of the Regulation. The concept of ‘stateless vessel’ in Article 2(10) covers (a) vessels that cannot claim the flag of any state, as they have not been registered by any state, and (b) vessels that claim the nationality of two or more States, using them according to convenience. The inclusion of the second category is in line with UNCLOS Article 92(2). The category of ‘stateless vessel’ is significant primarily because such vessels do not benefit from the protection of a flag state, if suspected of being engaged in the smuggling of migrants on the high seas (see below, Article 7 MN 13). A ‘place of safety’, as defined in Article 2(12), is the place where a rescue operation terminates. For that, it is necessary that the survivors’ safety of life is not threatened, that their basic human needs can be met, and that transportation can be arranged to their next destination. These elements are drawn from paragraph 6.12 of the IMO’s ‘Guidelines on the Treatment of Persons Rescued at Sea’, adopted in 2004.15 The determination that a location is a place of safety is to take fundamental rights ‘into account in accordance with the principle of non-refoulement. (On the concept of non-refoulement within the Regulation, see below, Article 4, MN 1 et seq.)16 The concept of a ‘coastal Member State’ covers any Member State in whose territorial sea or contiguous zone an interception takes place. It therefore covers the host state, other Member States participating in an operation, and other Member States who have authorised an interception under Articles 6 and 8 (see below). The Regulation does not contain a definition of the term ‘Member State’. It may be presumed from recitals 21–26 that these are the states bound by the Schengen acquis – i. e. the EU Member States other than Ireland and the UK, and the four associated states (Iceland, Liechtenstein, Norway and Switzerland). The Frontex Regulation does not treat Ireland or the UK as ‘Member States’, and it follows that they are to be classed as ‘third countries (see above Ryan, Frontex Regulation (EC) No 2007/2004, Article 1, MN 11). By implication, the same is true of the Sea Borders Regulation. If these states were to participate in a Frontex sea operation, the application to them of the Regulation’s principles would therefore depend upon the Frontex Management Board decision authorising their participation (see Article 20 of the Frontex Regulation).

15 IMO Resolution MSC. 167(78), adopted on 20 May 2004, discussed by Barnes, in Ryan/Mitsilegas (eds), Extraterritorial Immigration Control, p. 142–143. On the link to the Regulation, see COM(2013) 197, p. 6. 16 The Parliament had proposed that survivors’ fundamental rights should be guaranteed in addition to safety of life: European Parliament report A7-0461/2013 (18.12.2013), Amendment 21.

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CHAPTER II GENERAL RULES Article 3 Safety at sea Measures taken for the purpose of a sea operation shall be conducted in a way that, in all instances, ensures the safety of the persons intercepted or rescued, the safety of the participating units or that of third parties. Article 3 sets out a general principle of ‘safety at sea’ during measures taken within a 1 Frontex sea operation. This principle is stated to cover the following: persons rescued or intercepted; participating units, which presumably covers both vessels and persons on board; and, ‘third parties’, which presumably refers to persons, and may also apply to vessels. Article 3 is linked to international law obligations to ensure the safety of life at sea, set out in three instruments listed in recital 8 to the Regulation: the SOLAS Convention (see its Annex, Chapter V), the SAR Convention (the whole text) and UNCLOS (see its Article 98). Article 3 is not however limited to the safety of life, and may therefore extend to serious injury to persons, and to loss of, and significant damage to, vessels. The principle of safety set out in Article 3 is phrased in strict terms. The Commis- 2 sion proposal had provided that operational measures should not put safety ‘at risk’.17 The Parliament proposed the alternative formulation which appears in Article 3, that operational measures should ‘in all instances, ensure[]’ safety.18

Article 4 Protection of fundamental rights and the principle of non-refoulement 1. No person shall, in contravention of the principle of non-refoulement, be disembarked in, forced to enter, conducted to or otherwise handed over to the authorities of a country where, inter alia, there is 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 serious risk of an expulsion, removal or extradition to another country in contravention of the principle of non-refoulement. 2. When considering the possibility of disembarkation in a third country, in the context of planning a sea operation, the host Member State, in coordination with participating Member States and the Agency, shall take into account the general situation in that third country. The assessment of the general situation in a third country shall be based on information derived from a broad range of sources, which may include other Member States, Union bodies, offices and agencies, and relevant international organisations and it may take into account the existence of agreements and projects on migration and asylum carried out in accordance with Union law and through Union funds. That 17 18

COM(2013) 197 final, Article 3. European Parliament report A7-0461/2013 (18.12.2013), Amendment 22.

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assessment shall be part of the operational plan, shall be provided to the participating units and shall be updated as necessary. Intercepted or rescued persons shall not be disembarked, forced to enter, conducted to or otherwise handed over to the authorities of a third country when the host Member State or the participating Member States are aware or ought to be aware that that third country engages in practices as described in paragraph 1. 3. During a sea operation, before the intercepted or rescued persons are disembarked in, forced to enter, conducted to or otherwise handed over to the authorities of a third country and taking into account the assessment of the general situation in that third country in accordance with paragraph 2, the participating units shall, without prejudice to Article 3, use all means to identify the intercepted or rescued persons, assess their personal circumstances, inform them of their destination in a way that those persons understand or may reasonably be presumed to understand and give them an opportunity to express any reasons for believing that disembarkation in the proposed place would be in violation of the principle of non-refoulement. For those purposes, further details shall be provided for in the operational plan including, when necessary, the availability of shore-based medical staff, interpreters, legal advisers and other relevant experts of the host and participating Member States. Each participating unit shall include at least one person with basic first aid training. The report referred to in Article 13 shall, based on information that shall be provided by the host and participating Member States, include further details on cases of disembarkation in third countries and how each element of the procedures laid down in the first subparagraph of this paragraph was applied by the participating units to ensure compliance with the principle of non-refoulement. 4. Throughout a sea operation, the participating units shall address the special needs of children, including unaccompanied minors, victims of trafficking in human beings, persons in need of urgent medical assistance, disabled persons, persons in need of international protection and other persons in a particularly vulnerable situation. 5. Any exchange with third countries of personal data obtained during a sea operation for the purposes of this Regulation shall be strictly limited to what is absolutely necessary and shall be carried out in accordance with Directive 95/46/EC of the European Parliament and of the Council(16), Council Framework Decision 2008/ 977/JHA(17) and relevant national provisions on data protection. The exchange with third countries of personal data regarding intercepted or rescued persons obtained during a sea operation shall be prohibited where there is a serious risk of contravention of the principle of non-refoulement. 6. Participating units shall, in the performance of their duties, fully respect human dignity. 7. This Article shall apply to all measures taken by Member States or the Agency in accordance with this Regulation. 8. Border guards and other staff participating in a sea operation shall be trained with regard to relevant provisions of fundamental rights, refugee law and the international legal regime of search and rescue in accordance with the second paragraph of Article 5 of Regulation (EC) No 2007/2004. (16) Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31). (17) Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters (OJ L 350, 30.12.2008, p. 60).

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Art. 4

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Part B V

Content I. II. III. IV. V.

Article 4(1): Non-refoulement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Country Assessments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Processing individuals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 To whom does Article 4 apply?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

I. Article 4(1): Non-refoulement Article 4(1) sets out a general requirement of respect for the principle of nonrefoulement. This principle applies to the disembarkation of persons from participating vessels in a given state. It also applies to other transfers, defined as when a person is ‘forced to enter, conducted to or otherwise handed over to the authorities of a country.’ The principle applies without differentiation to persons who have been intercepted and who have been rescued. Article 4(1) refers to possible disembarkation in, or transfer to, ‘a country’, without qualification. The same term appears in Article 2(1a) of the Frontex Regulation, in relation to the general principle of non-refoulement applicable to all Frontex activity (see above Ryan, Frontex Regulation (EC) No 2007/2004, Article 2 MN 7). The ‘a country’ formulation arguably covers both Schengen states and third states (including Ireland and the UK: see above, Article 2 MN 11). The potential inclusion of EU and Schengen states is significant, because of the jurisprudence in relation to Dublin transfers showing that they may not be free of the types of fundamental rights breaches that ought to preclude expulsion or return.19 A possible objection to this interpretation is that in two other places Article 4 refers solely to ‘third countries’. These are: Article 4(2), in relation to the general assessment of a country (below, MN 9 et seq), and Article 4(3), in relation to the procedures to be followed by the participating unit (below, MN 12). While differences between the scope of Article 4(1) and other parts of Article 4 are not logically impossible, such an outcome would arguably be incoherent. A first general scenario covered by Article 4(1) is that of risks to a person in the state of proposed disembarkation or transfer. In that regard, Article 4(1) firstly refers to serious risks of treatment prohibited by two European fundamental rights norms – the death penalty (Article 2 ECHR and Article 2 ChFR) and torture and other inhuman or degrading treatment or punishment (Article 3 ECHR and Article 4 ChFR). Secondly, the list of in-state risks refers to ‘persecution’. This term may be read as covering all threats of serious fundamental rights violations, given that Article 9 of the Qualification Directive defines the term ‘act of persecution’ to mean acts which are ‘sufficiently serious by [their] nature or repetition as to constitute a severe violation of basic human rights’ or else are ‘an accumulation of various measures, including violations of human rights which [are] sufficiently severe as to affect an individual in a similar manner.’20 If ‘persecution’ does cover serious risks to other fundamental rights, the case-law of the ECtHR is of relevance. In particular, it has held that Article 2 ECHR prohibits 19 See ECtHR, Judgment of 21 January 2011 (GC), No. 30696/09, MSS v Belgium and Greece; ECJ, NS and ME, C-411/10 and C-493/10, EU:C:2011:865. 20 Directive 2011/95/EU 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 2011 L 337/9).

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expulsion to a country where there is a real threat to life,21 and that expulsion is prohibited to places where there is a real risk of a ‘flagrant’ breach of a right other than Articles 2 and 3 ECHR.22 A fundamental rights-based reading of ‘persecution’ may also extend to the protection against expulsion in situations of armed conflict conferred by Article 15(c) of the Qualification Directive.23 Thirdly, the list of in-state risks includes those contemplated by the prohibition on refoulement in Article 33(1) of the Refugee Convention – i. e. a threat to ‘life or freedom’ on grounds of race, religion, nationality, membership of a particular social group or political opinion. One difference is that here the ground of ‘sexual orientation’ has been added to the list.24 If the conventional approach to interpretation of the Refugee Convention were followed, a threat to ‘life or freedom’ should anyway be equated with a risk of ‘being persecuted’.25 The second broad scenario covered by Article 4(1) is that of a serious risk of expulsion, removal or extradition from the state of disembarkation or transfer, ‘in contravention of the principle of non-refoulement’. The phrase ‘non-refoulement’ is probably intended to cover all the risks listed in Article 4(1) – i. e. including those deriving from fundamental rights standards and from refugee law. That all-encompassing interpretation is set out expressly in recital 12 to the Regulation, and follows from the separate reference to the principle of non-refoulement in the initial words of Article 4(1). It is significant that Article 4(1) applies to all operations covered by the Regulation, including interceptions and rescues which commence on the high seas. It is now established that international human rights treaties apply to a state’s actions outside its territory where there is control over a person, whereas there is uncertainty as to whether the Refugee Convention does so (see above Ryan, Frontex Regulation (EC) No 2007/ 2004, Article 2 MN 8). One effect of Article 4(1) is to make it clear that both have extraterritorial effect where a Member State acts within a Frontex operation at sea. One fundamental right which is not protected by Article 4(1), however, is protection against collective expulsion under Article 4 of Protocol 4 to the ECHR. As we saw above (Article 1, MN 3), in Hirsi Jamaa, the ECtHR held that this right applies to migrants intercepted or rescued at sea.26 Such persons have a right to individual consideration of an expulsion or transfer, separately from a claim to protection against refoulement. This essentially procedural right is not provided for within Article 4(1).

II. Country Assessments 9

Article 4(2) requires a general assessment, prior to disembarkation in a third state, of the fundamental rights risks referred to in Article 4(1). (Other kinds of transfer are not expressly covered.) Its first paragraph places the onus of assessment on the host Member State, when planning the operation. The emphasis on the planning stage is also evident in the second paragraph, which requires that the general assessment be included in the operational plan, and that it be updated as necessary. That in turn implies an indirect role for Frontex, as the agreement of its Executive Director is 21

See e. g. 1 March 2005, No. 39642/03, Headley v UK. See e. g. ECtHR, Judgment of 17 January 2012, No. 8139/09, Othman v UK (Article 6 ECHR). 23 Article 3 ECHR may anyway apply in these situations: see ECtHR, Judgment of 28 June 2011, Nos. 8319/07 and 11449/07, Sufi and Elmi v UK, para 226. 24 The addition originated in European Parliament report A7-0461/2013 (18.12.2013), Amendment 23. 25 See Hathaway and Foster, The Law of Refugee Status, 2nd edition (Cambridge University Press, 2014), p. 184 n. 12. 26 See den Heijer, IJRL 25 (2013), p. 280–285 and Moreno-Lax, Human Rights Law Review 12 (2012), p. 586–589. 22

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required for the initial operational plan for joint operation, as well as for any amendments (see above Ryan, Frontex Regulation (EC) No 2007/2004, Article 3a MN 1). The first sentence of the second paragraph of Article 4(2) is concerned with the 10 information upon which the general assessment is based. There is an obligation to rely upon ‘a broad range of sources’, which may include information from other Member States, EU bodies, and international organisations. The assessment may also take into account forms of co-operation on migration and asylum carried out ‘in accordance with Union law and through Union funds’. The requirement to rely upon a broad range of information originated in a proposal by the Parliament.27 Its proposal would however have made it obligatory to rely upon Member State, EU and other international sources; it named the UNHCR in the list; and, it included relevant NGOs as a potential source. The silence of the Regulation in relation to NGOs is at odds with the Hirsi Jamaa ruling, in which the ECtHR recognised the relevance of ‘reports from independent international human rights protection associations’ to decisions on country conditions.28 The third paragraph of Article 4(2) provides that persons should not be disembarked, 11 in or otherwise transferred to, a third country, if the host Member State or other participating Member States ‘are aware or ought to be aware’ that that state ‘engages in’ practices covered by Article 4(1). This provision is in line with the finding in the Hirsi Jamaa ruling that the Italian authorities ‘knew or should have known’ about the treatment irregular migrants would face if returned to Libya.29 It goes further than the provision for the general assessment in two respects. Firstly, it is not limited to disembarkation, and applies to other kinds of transfer as well. Secondly, it places a duty upon all participating Member States, separate to the obligation on the host state in relation to the general assessment and operational plan.

III. Processing individuals The first paragraph of Article 4(3) places obligations upon participating units with 12 respect to the processing of persons who have been intercepted or rescued, if those persons are to be disembarked in, or otherwise transferred to, a third country. In such a situation, a participating unit must firstly endeavour to identify the persons concerned, and to assess their personal circumstances. Secondly, it must inform them of their planned destination in ‘a way that those persons understand or may reasonably be presumed to understand’. Thirdly, it must give them the opportunity to object to the proposed destination, on the grounds that their disembarkation would violate the principle of non-refoulement. There is an inconsistency in the first paragraph of Article 4(3) in the description of the place at issue. Information is to be given as to the ‘destination’, yet objection is contemplated only in relation to the ‘place of disembarkation’. If the place of disembarkation and the planned eventual destination differ, information presumably ought to be given in relation to both, as otherwise the right of objection to the place of disembarkation would be undermined. The possibility of an objection to the eventual destination ought also to be provided for, in order to ensure full respect for the principle of non-refoulement. The second paragraph of Article 4(3) requires that further details concerning on- 13 board procedures be provided in the operational plan. It also states that ‘when 27

European Parliament report A7-0461/2013 (18.12.2013), Amendment 24. Hirsi Jamaa, above, n. 4, para 118. 29 Ibid., para. 131. 28

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necessary’ provision should be made for the ‘availability’ of shore-based medical staff, interpreters, legal advisers and other ‘relevant experts’. The text is ambiguous as to whether the necessity and availability of these persons is to be assessed relative to the operation as a whole (a narrower interpretation), or with reference to the given individuals facing disembarkation or transfer (a broader interpretation). 14 It is not stated in Article 4(3), or elsewhere in the Regulation, what the consequences of an objection to the place of disembarkation or intended destination are to be. Who takes the initial decision to proceed or not, and on what basis? Can the disembarkation be suspended in an individual case, pending an administrative decision from an onshore authority? Are there to be on-shore legal remedies if a decision to proceed is taken? It is arguable that all these matters ought to be addressed in the operational plan. 15 The list in Article 4(4) of categories of person with ‘special needs’ that should be addressed is similar to that in Article 2(1a) of the Frontex Regulation (see above Ryan, Frontex Regulation (EC) No 2007/2004, Article 2 MN 9). The main differences are the addition of references to ‘unaccompanied minors’ and to ‘disabled persons’. A related provision is Article 4(6), which requires participating units to ‘fully respect human dignity’, an obligation also set out for joint operations in Article 3b(4) of the Frontex Regulation. Both principles clearly apply during the conduct of an operation. They are also potentially relevant to decision-making concerning disembarkation or transfer, if a given location is especially unsafe or lacking in dignity for persons in a particular category. 16 Article 4(5) concerns the exchange of personal data with third countries. Its first paragraph states that such exchange is only to take place if ‘absolutely necessary’, and only if it is in compliance with EU and national law on the subject. The purposes for which a data exchange may validly take place are not stated, however. In particular, it is not certain whether such a transfer may occur solely for the purpose of confirming or establishing a person’s identity. The second paragraph of Article 4(5) provides that personal data relating to persons who have been intercepted or rescued should not be exchanged with a third country if there is a ‘serious risk’ of violation of the principle of non-refoulement. One may wonder why only ‘serious’ risks of refoulement are sufficient to preclude a data transfer. Moreover, who is to determine what is and is not a ‘serious’ risk in this context, and on what basis?

IV. To whom does Article 4 apply? Under Article 4(7), the various guarantees contained in Article 4 apply to ‘all measures’ taken by Member States and by Frontex under the Regulation. The possibility for the host Member State to breach Article 4 flows from their role in conducting sea operations. A more complex scenario would be a breach of Article 4 guarantees by a participating unit from another state. If that unit was acting under the host state’s command and control, in whole or in part, it is arguable that both states should be responsible for any legal violations. 18 A further question is whether Frontex can breach fundamental rights or nonrefoulement guarantees, given that it does not itself conduct operations. Frontex may be thought responsible for breaches of these guarantees for two reasons (see above Ryan, Frontex Regulation (EC) No 2007/2004, Article 1 MN 22). One is that the operations it organises are identified as Frontex ones. The other is that it may have failed to ensure respect for fundamental rights or non-refoulement guarantees by the participating Member States. 17

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Art. 5

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Part B V

V. Training By virtue of the second sentence of Article 5 of the Frontex Regulation, Frontex has a 19 duty to ensure that certain personnel involved in its operations receive specified training. Article 4(8) of the Sea Borders Regulation gives greater detail to that training obligation in relation to ‘border guards’ and ‘other staff’ participating in sea operations. Persons in these categories are to receive training in relevant provisions of fundamental rights, refugee law and the international legal regime of search and rescue. While an express reference to search and rescue obligations does not appear in Article 5 of the Frontex Regulation, it presumably falls within the reference there to ‘relevant … international law’. In the context of sea operations, the term ‘other staff’ within this provision is uncertain. 20 In the case of Member State personnel, it could cover the crew of vessels, even if they were not involved in decision-making with respect to persons intercepted or rescued. It is also unclear whether the training obligation extends to any Frontex staff participating in sea operations.

CHAPTER III SPECIFIC RULES Article 5 Detection 1. Upon detection, the participating units shall approach a vessel suspected of carrying persons circumventing or intending to circumvent checks at border crossing points or of being engaged in the smuggling of migrants by sea in order to observe its identity and nationality and, pending further measures, shall survey that vessel at a prudent distance taking all due precautions. The participating units shall collect and immediately report information about that vessel to the International Coordination Centre, including, where possible, information about the situation of persons on board, in particular whether there is an imminent risk to their lives or whether there are persons in urgent need of medical assistance. The International Coordination Centre shall transmit that information to the National Coordination Centre of the host Member State. 2. Where a vessel is about to enter or it has entered the territorial sea or the contiguous zone of a Member State that is not participating in the sea operation, the participating units shall collect and report information about that vessel to the International Coordination Centre, which shall transmit that information to the National Coordination Centre of the Member State concerned. 3. The participating units shall collect and report information about any vessel suspected of being engaged in illegal activities at sea, which are outside the scope of the sea operation, to the International Coordination Centre, which shall transmit that information to the National Coordination Centre of the Member State concerned. Article 5 is concerned with the preliminary step of ‘detection’ within a sea operation. 1 Where a vessel is detected within the meaning of the Regulation, participating units are expected to observe its identity and nationality, to survey it at a distance, and to pass on relevant information to the International Co-ordination Centre. Ryan

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By virtue of Article 5(1), ‘detection’ refers exclusively to vessels suspected of being involved in irregular migration. Two possibilities are identified in this regard: ‘carrying persons circumventing or intending to circumvent checks at border crossing points’ or ‘being engaged in the smuggling of migrants by sea’. The reason for referring separately to ‘circumvention’ is presumably that, under the Migrant Smuggling Protocol, ‘smuggling’ requires both a material benefit to the smuggler (its Article 3(a)), and the involvement of a criminal organisation (its Article 4). 3 There is no express limitation in Article 5 upon the state whose border checks are suspected of being at risk of being circumvented, or towards which the suspected migrant smuggling might be taking place. There is no requirement that it be a Schengen state – i. e. ‘detection’ could in theory relate to vessels suspected of involvement in irregular migration towards a third country. If it is a Schengen state, it need not be a participant in the Frontex operation in question. 4 It is significant that Article 5(1) does not provide for detection solely because of a situation of distress affecting a vessel. Rather, if a vessel is detected for external border control reasons, the information to be passed on to the International Co-ordination Centre is to include ‘information about the situation of persons on board, in particular whether there is an imminent risk to their lives.’ Article 5(1) therefore confirms that the Frontex and Sea Borders Regulations do not concern operations that are exclusively or primarily concerned with search and rescue. 2

Article 6 Interception in the territorial sea 1. In the territorial sea of the host Member State or a neighbouring participating Member State, that State shall authorise the participating units to take one or more of the following measures where there are reasonable grounds to suspect that a vessel may be carrying persons intending to circumvent checks at border crossing points or is engaged in the smuggling of migrants by sea: (a) requesting information and documentation on ownership, registration and elements relating to the voyage of the vessel, and on the identity, nationality and other relevant data on persons on board, including whether there are persons in urgent need of medical assistance, and making persons on board aware that they may not be authorised to cross the border; (b) stopping, boarding and searching the vessel, its cargo and persons on board, and questioning persons on board and informing them that persons directing the vessel may face penalties for facilitating the voyage. 2. If evidence confirming that suspicion is found, that host Member State or neighbouring participating Member State may authorise the participating units to take one or more of the following measures: (a) seizing the vessel and apprehending persons on board; (b) ordering the vessel to alter its course outside of or towards a destination other than the territorial sea or the contiguous zone, including escorting the vessel or steaming nearby until it is confirmed that the vessel is keeping to that given course; (c) conducting the vessel or persons on board to the coastal Member State in accordance with the operational plan. 3. Any measure taken in accordance with paragraph 1 or 2 shall be proportionate and shall not exceed what is necessary to achieve the objectives of this Article. 4. For the purposes of paragraphs 1 and 2, the host Member State shall instruct the participating unit appropriately through the International Coordination Centre. 256

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Part B V

The participating unit shall inform the host Member State, through the International Coordination Centre, whenever the master of the vessel requests that a diplomatic agent or a consular officer of the flag State be notified. 5. Where there are reasonable grounds to suspect that a stateless vessel is carrying persons intending to circumvent the checks at border crossing points or is engaged in the smuggling of migrants by sea, the host Member State or the neighbouring participating Member State in whose territorial sea that stateless vessel is intercepted shall authorise one or more of the measures laid down in paragraph 1 and may authorise one or more of the measures laid down in paragraph 2. The host Member State shall instruct the participating unit appropriately through the International Coordination Centre. 6. Any operational activities in the territorial sea of a Member State that is not participating in the sea operation shall be conducted in accordance with the authorisation of that Member State. The host Member State shall instruct the participating unit through the International Coordination Centre based on the course of action authorised by that Member State. Content I. International law background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Interception Measures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Coastal State Authorisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 9

I. International law background Article 6 is concerned with the interception of vessels in the territorial sea of Member 1 States – i. e. the waters up to twelve nautical miles from the coast. The international law of the sea guarantees a right of innocent passage through the territorial sea to vessels flying a flag (UCNLOS, Article 17). A coastal state is permitted to take measures regulating the right of innocent passage, inter alia in order to prevent the breach of its immigration laws (UNCLOS, Article 21(1)(h)).30 For all interception measures under Article 6, the host state of the operation is to 2 issue instructions to the participating unit via the International Co-ordination Centre (Article 6(4), first paragraph).

II. Interception Measures Under the Regulation, interception measures are permitted in the territorial sea 3 where there are reasonable grounds to suspect that a vessel is carrying persons intending to circumvent border checks, or that it is involved in migrant smuggling. In the case of circumvention, it is not expressly stated that the border checks must be those of the state in question. That does though appear to follow from the terms of Article 21(1)(h) of UNCLOS. The Regulation provides for two stages in interception. In the first stage, under 4 Article 6(1) a participating unit may: – (a) request information and documentation on the vessel, its journey and the persons on board, and make the persons on board aware that they may not be authorised to enter the state in question; 30

See Barnes, in Ryan/Mitsilegas (eds), Extraterritorial Immigration Control, p. 120–126.

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– (b) stop, board and search the vessel and the persons on board, question the persons on board, and inform them that those directing the vessel may face penalties for facilitating the voyage. Where evidence is found confirming the suspicion of circumvention or migrant smuggling, the second stage is governed by Article 6(2). It permits the participating unit: – (a) to seize the vessel and ‘apprehend[]’ the persons on board – (b) to order the vessel to alter its course, away from the territorial sea and contiguous zone, and to escort the vessel, or to steam nearby, until it is confirmed that that course is being kept – (c) to conduct the vessel or persons to the host state or another participating state, ‘in accordance with the operational plan’. The Regulation does not expressly state that coercive force may be threatened or used to give effect to any of the measures listed in Article 6. Assuming that that is possible, any use of force will however be subject to the principle of safety set out in Article 3 (above). Where force is contemplated or used to give effect to an order to alter course away from the territorial sea, the Article 4 protection against non-refoulement (above) will not apply, as that presupposes that the persons in question are on board the participating unit. However, the fact that the territorial sea has been reached would in itself bring the persons on the vessel within the jurisdiction of the coastal state.31 They are therefore potentially protected against refoulement by virtue of ECHR principles, the Refugee Convention, and the corresponding provisions of the ChFR. That approach is confirmed by Article 3(1) to the 2013 Asylum Procedures Directive, which states that it applies inter alia to applications for international protection made in the ‘territorial waters’ of a state.32 The ECHR and ChFR prohibitions on collective expulsion would also potentially apply in such a situation. In such a scenario, if the legal guarantees against refoulement or collective expulsion are not to be undermined, the participating unit ought to allow the persons on board the intercepted vessel to indicate that they wish to claim protection. Where such an indication is given, then either the vessel should be escorted to a participating state, or the relevant persons on the intercepted vessel ought to be taken on board the participating unit, so as to trigger the application of Article 4. The interception measures provided for in Article 6 apply equally to vessels with a flag and to stateless vessels. In the former case, the master of the vessel concerned may request that the flag state’s diplomatic or consular services be notified (Article 6(4)). Article 6(5) provides expressly for the interception of stateless vessels.

III. Coastal State Authorisation 9

Article 6 interception measures are conditional upon authorisation by a coastal state. One scenario is that a vessel is intercepted within the territorial sea of the host state or of another participating state. In that case, the host or participating state is obliged 31 On the question whether the territorial sea is technically part of a state’s territory, see Pallis, IJRL 14 (2002), p. 342–344. 32 Directive 2013/32/EU on common procedures for granting and withdrawing international protection (recast), OJ 2013 L 180/60. No express reference to the territorial sea had appeared in the earlier Asylum Procedures Directive (Directive 2005/85/EC, OJ 2005 L 326/13). A reference to the ‘territorial waters’ was also included in Directive 2013/33/EU laying down standards for the reception of applicants for international protection (recast), OJ 2013 L 180/96, Article 3(1), having not appeared in the earlier Directive 2003/9/EC (OJ 2003 L 31/18).

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(‘shall’) to give authorisation to the participating unit to take the first-stage measures referred to in Article 6(1). In the case of the second-stage measures covered by Article 6(2), the host or participating state may give its authorisation. Article 6(6) concerns the possibility of interception measures in the territorial waters 10 of a Member State that is not participating in the operation. In that case, any operations are to be conducted in accordance with that state’s authorisation, which is presumably optional in all circumstances. While no reference is made within Article 6(6) to the interception measures provided for in Articles 6(1) and 6(2), for coherence, it appears likely that these are the measures that are permitted in such a situation. Within Article 6, the adjective ‘neighbouring’ is used to qualify the participating 11 states other than the host state who may give authorisation. This qualification is probably unnecessary, as it is likely that any participating state whose territorial waters will be affected by a given operation will be considered ‘neighbouring’. That impression is confirmed by the lack of provision within Article 6 for interception in the territorial waters of non-neighbouring, but participating, states.

Article 7 Interception on the high seas 1. On the high seas, where there are reasonable grounds to suspect that a vessel is engaged in the smuggling of migrants by sea, the participating units shall take one or more of the following measures, subject to the authorisation of the flag State, in accordance with the Protocol against the Smuggling of Migrants, and where relevant, national and international law: (a) requesting information and documentation on ownership, registration and elements relating to the voyage of the vessel, and on the identity, nationality and other relevant data on persons on board, including whether there are persons in urgent need of medical assistance; (b) stopping, boarding and searching the vessel, its cargo and persons on board, and questioning persons on board and informing them that persons directing the vessel may face penalties for facilitating the voyage. 2. If evidence confirming that suspicion is found, the participating units may take one or more of the following measures, subject to the authorisation of the flag State, in accordance with the Protocol against the Smuggling of Migrants, and where relevant, national and international law: (a) seizing the vessel and apprehending persons on board; (b) warning and ordering the vessel not to enter the territorial sea or the contiguous zone, and, where necessary, requesting the vessel to alter its course towards a destination other than the territorial sea or the contiguous zone; (c) conducting the vessel or persons on board to a third country or otherwise handing over the vessel or persons on board to the authorities of a third country; (d) conducting the vessel or persons on board to the host Member State or to a neighbouring participating Member State. 3. Any measure taken in accordance with paragraph 1 or 2 shall be proportionate and shall not exceed what is necessary to achieve the objectives of this Article. 4. For the purposes of paragraphs 1 and 2, the host Member State shall instruct the participating unit appropriately through the International Coordination Centre. 5. Where the vessel is flying the flag or displays the marks of registry of the host Member State or of a participating Member State, that Member State may, after Ryan

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confirming the nationality of the vessel, authorise one or more of the measures laid down in paragraphs 1 and 2. The host Member State shall then instruct the participating unit appropriately through the International Coordination Centre. 6. Where the vessel is flying the flag or displays the marks of registry of a Member State that is not participating in the sea operation or of a third country, the host Member State or a participating Member State, depending on whose participating unit has intercepted that vessel, shall notify the flag State, shall request confirmation of registry and, if nationality is confirmed, shall request that the flag State take action to suppress the use of its vessel for smuggling of migrants. If the flag State is unwilling or unable to do so either directly or with the assistance of the Member State to whom the participating unit belongs, that Member State shall request authorisation from the flag State to take any of the measures laid down in paragraphs 1 and 2. The host Member State or the participating Member State shall inform the International Coordination Centre of any communication with the flag State and of the intended actions or measures authorised by the flag State. The host Member State shall then instruct the participating unit appropriately through the International Coordination Centre. 7. Where, though flying a foreign flag or refusing to show its flag, there are reasonable grounds to suspect that the vessel is, in reality, of the same nationality as a participating unit, that participating unit shall verify the vessel’s right to fly its flag. To that end, it may approach the suspect vessel. If suspicion remains, it shall proceed to a further examination on board the vessel, which shall be carried out with all possible consideration. 8. Where, though flying a foreign flag or refusing to show its flag, there are reasonable grounds to suspect that the vessel is, in reality, of the nationality of the host Member State or a participating Member State, the participating unit shall verify the vessel’s right to fly its flag. 9. Where, in the cases referred to in paragraph 7 or 8, the suspicions regarding the nationality of the vessel prove to be founded, that host Member State or that participating Member State may authorise one or more of the measures laid down in paragraphs 1 and 2. The host Member State shall then instruct the participating unit appropriately through the International Coordination Centre. 10. Pending or in the absence of authorisation of the flag State, the vessel shall be surveyed at a prudent distance. No other measures shall be taken without the express authorisation of the flag State, except those necessary to relieve imminent danger to the lives of persons or those measures which derive from relevant bilateral or multilateral agreements. 11. Where there are reasonable grounds to suspect that a stateless vessel is engaged in the smuggling of migrants by sea, the participating unit may board and search the vessel with a view to verifying its statelessness. If evidence confirming that suspicion is found, the participating unit shall inform the host Member State which may take, directly or with the assistance of the Member State to whom the participating unit belongs, further appropriate measures as laid down in paragraphs 1 and 2 in accordance with national and international law. 12. A Member State whose participating unit has taken any measure in accordance with paragraph 1 shall promptly inform the flag State of the outcome of that measure. 13. The national official representing the host Member State or a participating Member State at the International Coordination Centre shall be responsible for facilitating communications with the relevant authorities of that Member State in

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seeking authorisation to verify the right of a vessel to fly its flag or to take any of the measures laid down in paragraphs 1 and 2. 14. Where the grounds to suspect that a vessel is engaged in the smuggling of migrants on the high seas prove to be unfounded or where the participating unit does not have jurisdiction to act, but there remains a reasonable suspicion that the vessel is carrying persons intending to reach the border of a Member State and to circumvent checks at border crossing points, that vessel shall continue to be monitored. The International Coordination Centre shall communicate information about that vessel to the National Coordination Centre of the Member States towards which it is directed. Content I. International law background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Interception measures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Flag state authorisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 5 9

I. International law background Article 7 is concerned with the legal position where interception measures are 1 contemplated on the high seas – i. e. outside of any state’s territorial waters (covered by Article 6) or contiguous zone (covered by Article 8). On the high seas, the core international law principle is the freedom of navigation, in accordance with Article 87 UNCLOS. Correspondingly, the presumption is that the flag state has exclusive jurisdiction over a vessel flying its flag (Article 92 UNCLOS). Article 110 UNCLOS limits the ‘right of visit’ by other states’ vessels to cases of reasonable suspicion of the following: – engagement in piracy or the slave trade – engagement in unauthorised broadcasting (provided the intercepting vessel’s state has jurisdiction); – that the ship is without nationality; or, – that the ship is concealing the fact that it is of the same nationality as the intercepting vessel. In addition, a state may consent to another state’s vessel’s right of visit to vessels flying its flag, either by treaty, or in an ad hoc manner.33 No reference is made in Article 110 UNCLOS to a right of visit where it is suspected 2 that a vessel is involved in irregular migration.34 Where a vessel is suspected of involvement in migrant smuggling, an international law basis for interception measures is instead provided by the Migrant Smuggling Protocol. In such a situation, one contracting state’s vessel may intercept a vessel with the nationality of another contracting state, if authorised to do so by the flag state (Article 8(2) of the Protocol).35 There is disagreement among scholars as to whether international law permits 3 enforcement measures – beyond a right to visit – in relation to stateless vessels, as these measures are not expressly provided for in Article 110 UNCLOS. Some writers treat the case of stateless vessels as a lacuna which international law has not fully 33 The possibility of permission by treaty is provided for by Article 110 UNCLOS. In relation to ad hoc consent, see Papastavridis (2014), p. 63–64, who relies upon the principle in Article 20 of the International Law Commission’s Draft Articles on State Responsibility (2001), that ‘consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State.’ 34 See Scovazzi, in Rubio-Marı´n (ed), Human Rights and Immigration, p. 216–217. 35 See Scovazzi, in Rubio-Marı´n (ed), Human Rights and Immigration, p. 217–220.

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addressed.36 Others take the view that enforcement measures may be taken by a given state where there is a specific ‘jurisdictional nexus or permissive rule’.37 The latter view appears preferable, to avoid the anomaly of stateless vessels being exempt from a legal regime – such as the Migrant Smuggling Protocol – to which most of the world’s states are subject. 4 The complex international law background explains why Articles 7(1) and 7(2) of the Regulation provide that interception measures on the high seas must be ‘in accordance with’ the Migrant Smuggling Protocol, and ‘where relevant, national and international law’. It also explains why Article 7 of the Regulation provides for interception solely in cases of suspected smuggling of migrants by sea, and not also (as in Article 6) in other cases of suspicion of an intention to contravene borders controls. If contravention alone is suspected, Article 7(14) provides for the vessel to be monitored, and for information to be passed on to the Schengen state towards which it is directed (which need not be a state involved in the operation).

II. Interception measures Article 7(1) applies where there are ‘reasonable grounds to suspect’ that a vessel is engaged in smuggling of migrants by sea. This threshold for intervention is based upon a similar phrasing in Article 8(1) of the Migrant Smuggling Protocol. When that requirement is met, Article 7(1) permits a similar set of interception measures to those set out in Article 6(1) (above, Article 6 MN 4): (a) requests for information and documentation on the vessel, its journey and the persons on board, and (b) stopping, boarding and searching the vessel and the persons on board, questioning the persons on board, and informing them that those directing the vessel may face penalties for facilitating the voyage. Boarding and searching are also provided for in Article 8(2) of the Migrant Smuggling Protocol, albeit in more general terms. As under Article 6(4), the host state of the operation is to issue instructions to the participating unit via the International Coordination Centre (Article 7(4)). 6 If evidence confirming a suspicion of smuggling is found, Article 7(2) sets out a list of further interception measures that may be taken, which is similar to that in Article 6(2), above. The participating unit may do the following: – (a) seize the vessel and ‘apprehend[]’ the persons on board. – (b) warn and order the vessel not to enter the territorial sea or contiguous zone, and ‘where necessary’ request it to alter its course towards another destination – (c) conduct the vessel or persons on board to a third country, or otherwise transfer them to the authorities of a third country – (d) conduct the vessel or persons on board to the host Member State or another participating Member State.38 In this second stage of interception, Article 7(2) provides a more detailed list than in Article 8(2) of the Migrant Smuggling Protocol, which refers simply to the taking of ‘appropriate measures’ with respect to a vessel and persons on board. 7 Article 7 does not expressly state that coercive force may be used in support of interception measures. If force is used, the principle of safety in Article 3 (above) is relevant. 5

36 See Papastavridis (2014), p. 264–267 i Scovazzi, in Rubio-Marı´n (ed), Human Rights and Immigration, p. 219. 37 See Guilfoyle, Shipping Interdiction and the Law of the Sea, p. 16–18, whose position is endorsed by Crawford, Brownlie’s Principles of Public International Law, 8th edition (OUP, 2012), p. 308. 38 The qualification ‘neighbouring’ has been disregarded: see above, Article 6 MN 11.

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A significant aspect of these provisions is the power given by Article 7(2)(c) to 8 conduct persons or a vessel to a third country. If the persons to be conducted elsewhere are taken on board a participating unit, the non-refoulement guarantees in Article 4 (above) will be applicable, as will be ECHR and ChFR guarantees against collective expulsion. If the vessel is to be conducted elsewhere, however, then the position is regulated solely by international law. It is probable that ECHR principles will nevertheless apply, as is shown by the drug smuggling interception case of Medvedyev, decided in 2010.39 That would ensure protection both against refoulement and against collective expulsion.

III. Flag state authorisation Where a vessel intercepted on the high seas is flying the flag or displaying the marks of registry of the host Member State or another participating Member State, Article 7(5) provides that, after confirming the vessel’s nationality, that state may authorise one or more of the interception measures listed in Articles 7(1) and (2). Where the vessel is flying the flag or displaying the marks of registry of another state – i. e., a non-participant Schengen state or a third country – Article 7(6) provides that the state of the participating unit (not the host state) ‘shall’ request the presumed state of nationality to confirm the vessel’s nationality. Where its nationality is confirmed, the participating unit’s state ‘shall’ request the flag state to take action to suppress the use of the vessel for migrant smuggling. Where that request does not lead to action by the flag state, it is further provided that the participating unit’s state ‘shall’ request the flag state’s authorisation to take the interception measures provided for in Articles 7(1) and (2). The provision in Article 7(6) for requests to the flag state is broadly in line with the terms of the Migrant Smuggling Protocol. Its Article 8(1) provides that flag states ‘may request the assistance of other States Parties in suppressing the use of [a] vessel for that purpose’. Moreover, its Article 8(2) specifically permits a request by another state to the flag state for authorisation to take interception measures. Another scenario is that a vessel is flying a foreign flag, or is refusing to display its flag, but there are ‘reasonable grounds’ to suspect that it has the nationality either of the participating unit (Article 7(7)), or of the host state or another participating state (Article 7(8)). In such a case, the participating unit is to verify the vessel’s right to fly its flag. If the suspicions as to nationality prove well-founded, the flag state may authorise one or more of the interception measures listed in Articles 7(1) and (2) (Article 7(9)). Article 7 is silent as to the legal position where the flag state is not a party to the Migrant Smuggling Protocol, but authorises interception measures.40 In such a case, it is arguable that the ad hoc consent of the flag state to the interception makes it lawful in international law (see above, this Article, MN 1). It is possible to read Article 7(1) and Article 7(2) as requiring authorisation under the Protocol, which would preclude measures against vessels flying the flag of a non-party state, even with its consent. An argument against that conclusion is that such an interception would anyway be ‘in accordance with’ the principles of the Protocol. Alternatively, this might be treated as a case in which only general international law principles are ‘relevant’ under Article 7(1) and Article 7(2). 39 ECtHR, Judgment of 29 March 2010 (GC), No. 3394/03, Medvedyev v France. For a discussion in the context of border control operations, see Moreno-Lax, IJRL 23 (2011), p. 202–203. 40 At the time of writing, there are 141 parties to the MSP, including the EU. Of the 53 UN member states that are not parties, two are Mediterranean states: Israel and Morocco.

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If a vessel is a stateless, freedom of navigation on the high seas is not protected by any state. As we saw above (this Article, MN 1 and 3), there is a right of visit in such circumstances under Article 110 UNCLOS, but room for disagreement concerning the legal basis for further enforcement measures. Article 8(7) of the Migrant Smuggling Protocol provides that ‘appropriate measures’ may be taken against stateless vessels, though without specifying what they may be. Article 7(11) of the Regulation is to be seen as a development of the Protocol on this point. It provides that, where there are ‘reasonable grounds’ for suspecting that the vessel is stateless, a participating unit may board and search the vessel in order to verify its nationality. If evidence confirming the suspicion of statelessness is found, the host state of the operation may take or authorise the interception measures provided for in Articles 7(1) and (2).

Article 8 Interception in the contiguous zone 1. In the contiguous zone of the host Member State or of a neighbouring participating Member State, the measures laid down in paragraphs 1 and 2 of Article 6 shall be taken in accordance with those paragraphs and with paragraphs 3 and 4 thereof. Any authorisation referred to in Article 6(1) and (2) may only be given for measures that are necessary to prevent the infringement of relevant laws and regulations within that Member State’s territory or territorial sea. 2. The measures laid down in Article 6(1) and (2) shall not be taken in the contiguous zone of a Member State that is not participating in the sea operation without the authorisation of that Member State. The International Coordination Centre shall be informed of any communication with that Member State and of the subsequent course of action authorised by that Member State. If that Member State does not give its authorisation and where there are reasonable grounds to suspect that the vessel is carrying persons intending to reach the border of a Member State, Article 7(14) shall apply. 3. Where a stateless vessel is transiting the contiguous zone, Article 7(11) shall apply. Article 8 is concerned with interception in a Member State’s contiguous zone. The contiguous zone extends up to 24 nautical miles from the coast (Article 33(2) UNCLOS). Within it, a state may exercise such control as is necessary to prevent or punish the infringement, in its territory and territorial sea, of its ‘customs, fiscal, immigration or sanitary laws and regulations’(Article 33(1) UNCLOS).41 2 Article 8(1) extends the provision for interception measures within the territorial sea (above, Article 6, MN 4 and 5) to the contiguous zone of the host state and of other participating states.42 It refers both to circumvention of border control and migrant smuggling. It does however not go as far as UNCLOS, as a Member State may authorise interception measures only if necessary to prevent infringement of its laws and regulations, and not also for the punishment of infringements. 3 The possibility to authorise interception measures under Article 8(1) is limited to ‘relevant’ laws and regulations. In the context of the Regulation, that term probably refers solely to laws and regulations concerned with immigration and border control. If 1

41

For a discussion, see Barnes, in Ryan/Mitsilegas (eds), Extraterritorial Immigration Control, p. 126–

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so, it would not be permissible for a Member State to use other state’s assets to prevent the infringement of its customs, fiscal or sanitary laws. Under Article 8(1), the ‘relevant’ laws must moreover be those of that Member State – i. e. it is not possible to authorise interception in the contiguous zone to prevent the breach of another state’s laws. Article 8 of the Regulation is silent as to whether coercive measures may be taken to 4 give effect to the measures provided for. If such measures are used, the principle of safety in Article 3 (above) is relevant. Where coercive measures are taken against a vessel, the legal guarantees concerning refoulement and collective expulsion are those that apply on the high seas (see above, Article 7, MN 7). Unlike in the case of Article 6 (above, MN 7), the EU asylum acquis does not apply, as the situation is not within the territorial waters. Article 8(2) permits interception measures in the contiguous zone of a non-partici- 5 pating Member State, if it gives authorisation. The permitted interception measures are expressly stated to be those in Articles 6(1) and (2). Where a non-participating Member State does not give its authorisation for interception measures, the monitoring provisions in Article 7 (above, MN 4) apply. Where suspected stateless vessels are detected in a Member State’s contiguous zone, 6 Article 8(3) provides for the application of Article 7(11) (see Article 7 above, MN 13). Accordingly, these vessels may be boarded and searched to verify their lack of nationality, and, if that is confirmed, the host state may decide on ‘appropriate measures’.

Article 9 Search and rescue situations 1. Member States shall observe their obligation to render assistance to any vessel or person in distress at sea and, during a sea operation, they shall ensure that their participating units comply with that obligation, in accordance with international law and respect for fundamental rights. They shall do so regardless of the nationality or status of such a person or the circumstances in which that person is found. 2. For the purpose of dealing with search and rescue situations that may occur during a sea operation, the operational plan shall contain, in accordance with relevant international law, including that on search and rescue, at least the following provisions: (a) When, in the course of a sea operation, the participating units have reason to believe that they are facing a phase of uncertainty, alert or distress as regards a vessel or any person on board, they shall promptly transmit all available information to the Rescue Coordination Centre responsible for the search and rescue region in which the situation occurs and they shall place themselves at the disposal of that Rescue Coordination Centre. (b) The participating units shall inform the International Coordination Centre as soon as possible of any contact with the Rescue Coordination Centre and of the course of action taken by them. (c) A vessel or the persons on board shall be considered to be in a phase of uncertainty in particular: (i) when a person has been reported as missing or a vessel is overdue; or (ii) when a person or a vessel has failed to make an expected position or safety report. (d) A vessel or the persons on board shall be considered to be in a phase of alert in particular: Ryan

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(i) when, following a phase of uncertainty, attempts to establish contact with a person or a vessel have failed and inquiries addressed to other appropriate sources have been unsuccessful; or (ii) when information has been received indicating that the operating efficiency of a vessel is impaired, but not to the extent that a distress situation is likely. A vessel or the persons on board shall be considered to be in a phase of distress in particular: (i) when positive information is received that a person or a vessel is in danger and in need of immediate assistance; or (ii) when, following a phase of alert, further unsuccessful attempts to establish contact with a person or a vessel and more widespread unsuccessful inquiries point to the probability that a distress situation exists; or (iii) when information is received which indicates that the operating efficiency of a vessel has been impaired to the extent that a distress situation is likely. Participating units shall, for the purpose of considering whether the vessel is in a phase of uncertainty, alert or distress, take into account and transmit all relevant information and observations to the responsible Rescue Coordination Centre including on: (i) the existence of a request for assistance, although such a request shall not be the sole factor for determining the existence of a distress situation; (ii) the seaworthiness of the vessel and the likelihood that the vessel will not reach its final destination; (iii) the number of persons on board in relation to the type and condition of the vessel; (iv) the availability of necessary supplies such as fuel, water and food to reach a shore; (v) the presence of qualified crew and command of the vessel; (vi) the availability and capability of safety, navigation and communication equipment; (vii) the presence of persons on board in urgent need of medical assistance; (viii) the presence of deceased persons on board; (ix) the presence of pregnant women or of children on board; (x) the weather and sea conditions, including weather and marine forecasts. While awaiting instructions from the Rescue Coordination Centre, participating units shall take all appropriate measures to ensure the safety of the persons concerned. Where a vessel is considered to be in a situation of uncertainty, alert or distress but the persons on board refuse to accept assistance, the participating unit shall inform the responsible Rescue Coordination Centre and follow its instructions. The participating unit shall continue to fulfil a duty of care by surveying the vessel and by taking any measure necessary for the safety of the persons concerned, while avoiding to take any action that might aggravate the situation or increase the chances of injury or loss of life. Where the Rescue Coordination Centre of a third country responsible for the search and rescue region does not respond to the information transmitted by the participating unit, the latter shall contact the Rescue Coordination Centre of the host Member State unless that participating unit considers that another internationally recognised Rescue Coordination Centre is better able to assume coordination of the search and rescue situation.

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The operational plan may contain details adapted to the circumstances of the sea operation concerned. 3. Where the search and rescue situation has been concluded, the participating unit shall, in consultation with the International Coordination Centre, resume the sea operation. Content I. International law background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Textual analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3

I. International law background Article 9 is concerned with rescue, and aims to ensure that vessels involved in 1 Frontex sea operations provide assistance to persons in distress at sea. The background is the international law obligation upon states to require that vessels flying their flag provide such assistance.43 The most prominent statement is in Article 98(1) UNCLOS, according to which: ‘Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers: (a) to render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him …’

The premise of Article 9 is that Member States and their assets are engaged in border 2 control operations, during which search and rescue situation arises.44 As such, it is not concerned with the separate duty upon coastal states to make adequate provision for search and rescue services, set out in the SOLAS Convention (Chapter V, Regulation 7) and Article 98(2) of UNCLOS, and taken forward by the SAR Convention (see its Annex, Chapter 2).

II. Textual analysis Under the first sentence of Article 9(1), Member States are to observe their duty to 3 render assistance to vessels and persons in distress at seas. Accordingly, they are to ensure that their participating units comply with that obligation during Frontex sea operations. The second sentence of Article 9(1) provides that the obligation to assist is to apply irrespective of the nationality or status of a person, or of ‘the circumstances’ in which they are found. This reproduces a statement in paragraph 2.1.10 of the Annex to the SAR Convention. It implies in particular that assistance is to be fully extended to migrants who are engaged in irregular journeys, including those in the course of being smuggled. To give effect to that general obligation, Article 9(2) sets out various matters that 4 must be provided for in the operational plan. The list includes definitions of phases of ‘uncertainty’, ‘alert’ and ‘distress’, which are taken verbatim from para 4.4 of the Annex to the SAR Convention.45 43 In addition to Article 98 UNCLOS (discussed in the text), see SOLAS Convention, Chapter V, Regulation 33 (duty on masters) and SAR Convention, Annex, para 2.1.10 (duty on states). 44 For a discussion of whether Article 98 UNCLOS applies inside the territorial sea, see Pallis, IJRL 14 (2002), p. 335–338. There is no doubt that corresponding provisions of the SOLAS Convention (above, n. 43) apply in the territorial sea. 45 On the link to the SAR Convention, see COM(2013) 197, p. 6.

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The list in Article 9(2) includes an obligation upon participating units to promptly transmit all available information to the Rescue Coordination Centre for the SAR zone in question, when they have reason to believe that they are faced with a situation of uncertainty, alert or distress as regards any vessel or person on board. Participating units should then place themselves at the disposal of that Rescue Coordination Centre.

Article 10 Disembarkation 1. The operational plan shall contain, in accordance with international law and respect for fundamental rights, at least the following modalities for the disembarkation of the persons intercepted or rescued in a sea operation: (a) in the case of interception in the territorial sea or the contiguous zone as laid down in Article 6(1), (2) or (6) or in Article 8(1) or (2), disembarkation shall take place in the coastal Member State, without prejudice to point (b) of Article 6(2); (b) in the case of interception on the high seas as laid down in Article 7, disembarkation may take place in the third country from which the vessel is assumed to have departed. If that is not possible, disembarkation shall take place in the host Member State; (c) in the case of search and rescue situations as laid down in Article 9 and without prejudice to the responsibility of the Rescue Coordination Centre, the host Member State and the participating Member States shall cooperate with the responsible Rescue Coordination Centre to identify a place of safety and, when the responsible Rescue Coordination Centre designates such a place of safety, they shall ensure that disembarkation of the rescued persons is carried out rapidly and effectively. If it is not possible to arrange for the participating unit to be released of its obligation referred to in Article 9(1) as soon as reasonably practicable, taking into account the safety of the rescued persons and that of the participating unit itself, it shall be authorised to disembark the rescued persons in the host Member State. Those modalities for disembarkation shall not have the effect of imposing obligations on Member States not participating in the sea operation unless they expressly provide authorisation for measures to be taken in their territorial sea or contiguous zone in accordance with Article 6(6) or Article 8(2). The operational plan may contain details adapted to the circumstances of the sea operation concerned. 2. The participating units shall inform the International Coordination Centre of the presence of any persons within the meaning of Article 4, and the International Coordination Centre shall transmit that information to the competent national authorities of the country where disembarkation takes place. The operational plan shall contain the contact details of those competent national authorities, which shall take appropriate follow-up measures. Content I. Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Textual analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Sea Borders Regulation (EU) No 656/2014

Part B V

I. Overview Article 10 is concerned with disembarkation after interception or rescue. Article 4 1 (above) contains the general rule that the disembarkation location ought not to give rise to a risk of refoulement. That does not however resolve the question: where, while complying with that rule, should disembarkation occur? Viewed in this light, the purpose of Article 10(1) is to identify the default state for disembarkation in different circumstances, and to ensure provision for that in the operational plan. The scenarios of interception and rescue must be considered logically distinct. 2 Interception is by definition initiated by a state’s vessel, and the international law assumption is that the state in question will already have made provision for disembarkation. In a rescue scenario, in contrast, any states or vessels involved have responded to a humanitarian need, and advance provision for disembarkation cannot be assumed. In a rescue situation, depending on the circumstances, options for disembarkation might include the closest coastal state, the next port of call of the rescuing vessel, the home state of the rescuing vessel, and the state of the search and rescue region.46 Amendments to the SOLAS and SAR Conventions agreed in 2004, which came into force in 2006, place ‘primary responsibility’ upon the SAR region state to ensure disembarkation to a place of safety, but without expressly obliging that state to itself allow disembarkation.47 In international law, a definitive default solution for disembarkation therefore remains lacking.48

II. Textual analysis In the case of interception in a Member State’s territorial sea or contiguous zone, 3 disembarkation is to take place in that state (Article 10(1)(a)). This applies both to participating and non-participating Member States. This provision is without prejudice to the possibility of the vessel’s being ordered to alter its course away from the territorial sea or contiguous zone, in accordance with Article 6 (above, MN 5). In the case of interception on the high seas, disembarkation may either take place in 4 the third state from which the vessel is assumed to have departed, or – if that is not possible – in the host Member State of the operation (Article 10(1)(b)). Article 10 does not contemplate disembarkation in any other state – i. e. neither another third country nor another Schengen state. In the case of rescue, the starting-point is similar to the 2004 amendments to the 5 SOLAS and SAR Conventions. Accordingly, responsibility to identify a place of safety lies with the Rescue Coordination Centre (Article 10(1)(c)). The host Member State and participating Member States have a duty to co-operate with the Rescue Coordination Centre in identifying a place of safety, and also in implementing the disembarkation 46

See generally Goodwin-Gill/McAdam, The Refugee in International Law, 3rd ed (OUP, 2007), p. 277–

284. 47 Barnes, in Ryan/Mitsilegas (eds), Extraterritorial Immigration Control, p. 138–142; Scovazzi, in Rubio-Marı´n (ed), Human Rights and Immigration, p. 230–231. Malta has not accepted these amendments: see Trevisanut, International Journal of Marine and Coastal Law 25 (2010), p. 531. 48 The closest to such a default position was a recommendation of the IMO’s Facilitation Committee in 2009 that disembarkation should take in the SAR region state, if no timely alternative was available elsewhere: see Principles Relating to Administrative Procedures for Disembarking Persons Rescued at Sea (FAL.3/Circ.194, 22 January 2009), discussed in Trevisanut, International Journal of Marine and Coastal Law 25 (2010), p. 530.

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Part B V Art. 15

Entry and Border Controls

when it is arranged. There are no restrictions on the state of disembarkation, other than the general limitations linked to non-refoulement in Article 4 (above, MN 1 et seq). Crucially, however Article 10(1) goes on to provide a default position in the event that no state of disembarkation can at first be found. If the participating unit in question is not released from its obligation to assist ‘as soon as reasonably practicable’, disembarkation in the host Member State shall be authorised. This terminology was also used in amendments to the SOLAS and SAR Conventions adopted in 2004,49 but without specifying the default solution.

Article 11 This provision, dealing with an amendment to the Frontex Regulation, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 12 This provision, dealing with solidarity mechanisms in situations of pressure, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 13 This provision, dealing with a Frontex obligation to produce an annual report, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

CHAPTER IV FINAL PROVISIONS Article 14 This provision, dealing with the cessation of the effect of Decision 2010/252/EU, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text.

Article 15 This provision, dealing with the entry into force of the Regulation, has been omitted from this commentary in order to focus on core aspects. Please consult the Official Journal of the European Union for the complete text. 49

270

See now SOLAS Covention, Chapter V, Regulation 33.1.1, SAR Convention, Annex, para 3.1.9.

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PART C IMMIGRATION I. Legal Framework for EU Immigration Policy Selected Bibliography: Acosta Arcarazo/Murphy (eds), EU Security and Justice Law (Hart, 2014); Azoulai/de Vries, (eds), EU Migration Law (OUP, 2014); Boeles/den Heijer/Lodder/Wouters, European Migration Law, 2nd edn (Intersentia, 2014); Bonjour/Rea/Jacobs (eds), The Others in Europe (Institut d’e´tudes europe´ennes, 2011); Coleman, European Readmission Policy (Martinus Nijhoff, 2008); Bribosia, ‘Les Politiques d’inte´gration de l’Union europe´enne et des E´tats Membres a` l’e´preuve du principe de nondiscrimination’, in: Pascouau/Strik (eds), Which Integration Policies for Migrants? (Wolf, 2012), p. 51–81; Carrera, In Search of the Perfect Citizen? (Martinus Nijhoff, 2009); Geiger/Kahn/Kotzur (eds), European Union Treaties (C.H. Beck/Hart, 2014); Groenendijk, ‘Citizens and Third Country Nationals’, in: Carlier/ Guild (eds), L’avenir de la libre circulation des personnes dans l’U. E. The Future of Free Movement of Persons in the EU (Bruylant, 2006), p. 79–102; Hailbronner, Immigration and Asylum Law and Policy of the European Union (Kluwer, 2000); Iglesias Sa´nchez, ‘Fundamental Rights Protection for Third Country Nationals and Citizens of the Union’, EJML 15 (2013), p. 137–153; Kugelmann, ‘Einwanderungs- und Asylrecht’, in: Schulze/Zuleeg/Kadelbach (eds), Europarecht. Handbuch fu¨r die deutsche Rechtspraxis, 3rd edn (Nomos, 2015), § 41; Labayle, ‘L’espace de liberte´, se´curite´ et justice dans la Constitution pour l’Europe’, Revue trimestrielle de droit europe´en 41 (2005), p. 437–472; Peers, EU Justice and Home Affairs Law, 3rd edn (OUP, 2011); ter Steeg, Das Einwanderungskonzept der EU (Nomos, 2006); Thym, ‘EU Migration Policy and its Constitutional Rationale’, CML Rev. 50 (2013), p. 709–736; Thym, ‘Residence as de facto Citizenship?’, in: Rubio-Marin (ed), Human Rights and Immigration (OUP, 2014), p. 106–144; Thym, ‘Towards International Migration Governance?’, in: Van Vooren et al. (ed), The Legal Dimension of Global Governance: What Role for the EU? (OUP, 2013), p. 289–305; Weiß, Articles 77–80 TFEU, in: Streinz (ed), EUV/AEUV. Kommentar, 2nd edn (C.H. Beck, 2011); Wiesbrock, Legal Migration to the European Union (Martinus Nijhoff, 2010); Wilsher, ‘Economic Migration into the European Union: Standing at the Crossroads’, Yearbook of European Law 21 (2002), 163.

Content I. General Remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Evolution of EU Immigration Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Territorial Scope (Member State Participation) . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Treaty Guidance under Article 79 TFEU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Migration Governance (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 Labour Market (Article 79(5) TFEU) . . . . . . . . . . . . . . . . . . . . . . III. Overarching Principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Free Movement of Union Citizens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Third-Country Nationals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Non-Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Social Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Abuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Human Rights and International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Protection of Private and Family Life. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. International Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Thym

1 1 5 6 6 9 11 17 19 21 22 24 26 28 28 33 37 43 48 50 52 57

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Part C I

Immigration

I. General Remarks 1. Evolution of EU Immigration Policy Under the original Schengen Agreements, which contained only corollary rules on short-term stays (see Thym, Legal Framework for Entry and Border Controls, MN 3), immigration policy towards third-country nationals remained mainly the domain of Member States’ competencies. This changed when the Treaty of Maastricht designated immigration policy a matter of common interest, thereby signalling the start for the gradual harmonisation of national policies.1 On the basis of intergovernmental decisionmaking procedures at the time (see Hailbronner/Thym, Constitutional Framework, MN 2), the Member States agreed upon a number of joint positions and draft conventions which did not become binding law but paved the way, nevertheless, for the later adoption of legislation after the introduction of a more robust Treaty foundation by the Treaty of Amsterdam.2 Decision-making procedures were gradually aligned with the orthodoxy of the supranational method 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 Hailbronner/ Thym, ibid., 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). 2 Political agreement on new instruments for legal migration was difficult to reach in contrast to entry and border controls as well as asylum with regard to which the Schengen Agreements on the Geneva Convention established a solid foundation for substantive policy harmonisation. Even negotiations on family reunion were cumbersome (see Hailbronner/Are´valo, Directive 2003/86/EC Article 1 MN 2–13) despite the human rights framework under Article 8 ECHR (see below MN 52–56). 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.’3 A corresponding 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.4 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,5 which laid the basis for a sectoral approach to economic migration with specific directives on individual aspects6 that were eventually adopted after prolonged debates. The Blue Card, the Seasonal Workers Directive, the ICT Directive and the Single Permit Directive, which will be commented on in this volume, are the outcome of this process. 1

1 See Article K.1(3) EU Treaty as amended by the Treaty of Maastricht of 7 February 1992 (OJ 1992 C 191/1); and Hailbronner, Immigration and Asylum, p. 47–52. 2 See Hailbronner, Immigration and Asylum, p. 260–288. 3 Commission Communication, COM(2000) 757, p. 13 (first quotation) and p. 6 (second quotation). 4 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 Wilsher, Economic Migration, p. 172–183; and Papagianni, Institutional and Policy Dynamics of EU Migration Law (Martinus Nijhoff, 2006), ch. 5. 5 See the 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. 6 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.

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Part C I

More recently, the Commission reactivated its ambition when it suggested the future 3 adoption of an immigration code to streamline existing legislation after the agreement on the Stockholm Programme – and was rejected by the Member States in the Council.7 The current Ypres Guidelines by the European Council (see Hailbronner/Thym, Constitutional Framework, MN 8–9) are decidedly vague, stressing, in a similar vein as Commission President Juncker, that the EU should ‘remain an attractive destination for talents and skills’ on an equal footing with Australia or Canada.8 To agree on such objective still leaves open the search for coherent policy responses, especially in respect of the transnational movement of people less qualified than the highly skilled with regard to which the economic and social benefits of more inward migration for European societies are much less evident. Political disagreement over the direction of immigration policy should not come as a 4 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 Hailbronner/ 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).9 The underlying reason may be the absence of a basic agreement about the conceptual underpinning of immigration policy, since the Commission could not convince Member States to follow its essentially market-driven approach to economic migration (see above MN 3).10 Generally speaking, immigration policy presents itself, also beyond the European Union, as a conglomerate of competing policy objectives which cannot easily be reconciled, not least since states do not always control policy outcomes.11 In the field of legal migration, cultural and identificatory aspects should not be as easily brushed aside as xenophobia, since European societies change in response to migration.12 It remains the responsibility of politicians, when deciding about the contours of the present and future immigration regime at European level, to evade the pitfalls of scapegoating inherent in many policy responses to migratory phenomena.13

2. Territorial Scope (Member State Participation) The EU immigration measures are subject to country-specific opt-outs for the United 5 Kingdom, Ireland and Denmark. The abstract rules guiding these arrangements are described in the introductory chapter to this commentary (see Hailbronner/Thym, Constitutional Framework, MN 38–45). It was demonstrated that the overall picture is rather complex and can be difficult to discern in specific scenarios, since the country7 Contrast the Commission Communication, COM(2010) 171, p. 7 with the Council Conclusions, Council doc. 9935/10 of 19 May 2010 (adopted by the JHA Council on 3 June 2010); for the broader political context, see Kostakopoulou et al., ‘EU Migration Law’, in: Arcarazo/Murphy (eds), EU Security, p. 129, 132–134. 8 See European Council, doc. EUCO 79/14 of 27 June 2014, para 7; and the political guidelines for the 2014–19 EU Commission by its President Juncker, A New Start for Europe, 14 July 2014, p. 9–10. 9 See also Ryan, ‘The European Union and Labour Migration’, in: Toner et al. (eds), Whose Freedom, Security and Justice? (Hart, 2007), p. 489, 490–496. 10 On different policy visions, see Thym, Migrationsverwaltungsrecht (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 (Elgar, 2004), p. 211, 217–221; and Peers, ‘Aliens, Workers, Citizens or Humans?’, in: Guild/Harlow (eds), Implementing Amsterdam (Hart, 2001), p. 291–308. 11 See Boswell, ‘Theorizing Migration Policy’, IM Rev. 41 (2007), p. 75, 87–95; and Castles/de Haas/ Miller, The Age of Migration, 5th edn (Palgrave, 2013), chs 8–12. 12 See Thym, Constitutional Rationale, p. 220–221; and ibid., ‘Citizens and Foreigners in EU Law’, ELJ 22 (2016), sect. 4 (forthcoming). 13 See, generally, Girard, La Violence et le sacre ´ (Grasset, 1972).

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Part C I

Immigration

specific opt-outs for the United Kingdom, Ireland and Denmark do not follow a uniform pattern. There are differences between the rules for Denmark on the one hand and for the United Kingdom and Ireland 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 the United Kingdom, Ireland or Denmark are bound. In order to facilitate orientation, the list of the measures below indicates whether the instruments commented on in this volume are binding for the United Kingdom, Ireland and/or Denmark and whether they are considered to be building upon the Schengen acquis. Instrument

United Kingdom

Ireland

Denmark

Schengen?14

Family Reunification Directive 2003/86/EC

no

no

no

no

Long-Term Residents Directive 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

Student Directive 2004/114/EC

no

no

no

no

Researcher Directive 2005/71/EC

no

yes

no

no

Blue Card 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

Participation in immigration law instruments commented upon in this volume.

14 Does the measure build upon the Schengen acquis? If yes, it is subject to the opt-out arrangements in the Schengen Protocol described by Hailbronner/Thym, Constitutional Framework, MN 41, 44.

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II. Treaty Guidance under Article 79 TFEU Article 79 TFEU 1. The Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings. 2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures in the following areas: (a) the conditions of entry and residence, and standards on the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunification; (b) the definition of the rights of third-country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States; (c) illegal immigration and unauthorised residence, including removal and repatriation of persons residing without authorisation; (d) combating trafficking in persons, in particular women and children. 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.

1. Migration Governance (Article 79(1) TFEU) The EU Treaty takes up, in Article 79(1) TFEU, the objective of ensuring an 6 ‘efficient15 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 Hailbronner/Thym, Constitutional Framework, MN 4, 13). It indicates that public authorities should strive for an impact on cross-border movements of people that can occur, like often in the US, ‘outside the law.’16 Of course, this objective remains counter-factual, since state authorities will never be in full control. Nonetheless, EU Treaties express the desire that public authorities should strive for regulatory leverage, reflecting both Europe’s 15 While the English language version employs the process-oriented term ‘efficient’ (not the outcomeoriented word ‘effective’), other language versions, which are equally valid, use the term ‘effective’ or wording that can mean both; cf. the German ‘wirksam’, the French ‘efficace’ or the Spanish ‘eficaz.’ 16 See Motomura, Immigration Outside the Law (OUP, 2014).

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wider ‘social model’ of active state involvement in social and economic policy and the wish to prevent the unintended side effects that had hitherto defined the immigration policies of many Member States.17 Article 79(1) TFEU signposts that EU policy is, among other things, meant to reduce the often widespread mismatch between legal rules and social realities concerning migration. 7 The objective to ensure an efficient management of migration flows ‘at all stages’ indicates that the EU Treaties 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.18 Depending on the circumstances of the individual case, EU migration law can provide for ‘short-stay residence permit[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). This gradual approach contrasts with the classic position of US law which has traditionally distinguished categorically between the distinct category of ‘immigrants’ with a permanent right to residence from day one and ‘non-immigrants’ with a temporary status.19 The careful 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 conditions and standards for different status groups. The European concept of an ‘immigration policy’ (French: politique d’immigration) is not about either entry or rejection, but about a differentiated and selective admission process on the basis of refined statutory rules, whose content is decided on by the EU legislature in the ordinary legislative procedure.20 8 The EU Treaties emphasise that public migration management must not result in a treatment of human beings akin to that of objects when it calls upon EU institutions to guarantee the ‘fair treatment of third-country nationals’ (Article 79(1) TFEU; similarly, Article 67(2) TFEU; French: traitement e´quitable), thereby introducing a basic notion of normative considerations of social justice into the Treaty design for immigration policy. I have explained elsewhere that the different Treaty objectives for immigration policy ranging from migration management to fair treatment, read in conjunction, should be conceived of as an aspiration of ‘migration governance’ accommodating the management perspective of state authorities with the legitimate interests of migrants.21 Corresponding requirements for efficient migration management and fair treatment are legally binding at an abstract level that does not translate – in a similar way as other Treaty objectives – into judiciable standards for the review of EU legislation in regular circumstances (see Hailbronner/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 may, within the context of EU immigration policy, always rely upon the human rights in the EU Charter (see below MN 51–52). 17 See Castles, ‘The Factors that Make and Unmake Migration Policies’, IM Rev. 38 (2004), p. 852–884; Thym, International Migration Governance, p. 291–292; and Hollifield, ‘The Emerging Migration State’, IM Rev. 38 (2006), p. 885, 894–899. 18 On the underlying concept, see Thym, Migrationsverwaltungsrecht (Mohr Siebeck, 2010), p. 18–24. 19 In practice, the distinction has increasingly given way to a gradual system in which initial temporary statuses are ‘upgraded’ to immigrant status after some years of residence. 20 The ordinary legislative procedure applies to all aspects of Article 77–79 TFEU. 21 See Thym, Constitutional Rationale, p. 721–723.

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2. Scope of EU Competences (Article 79(2) TFEU) As a shared competence, legislation on immigration policy must comply with the 9 principles of subsidiarity and proportionality that oblige the EU legislature to limit their action to initiatives that cannot be sufficiently achieved at national level and remain limited, in terms of regulatory intensity, to what is necessary to achieve legitimate policy objectives.22 However, when assessing specific proposals, it should be acknowledged that the far-reaching 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.23 The term ‘measure’ in the introductory part of Article 79(2) TFEU indicates that directives, regulations and decisions can be adopted and that operative and financial support, which legally usually rests upon a decision, are also permissible (see Thym, Legal Framework for Entry and Border Controls, MN 7). The recurrent use of the term ‘third-country national’24 indicates that the migration 10 status of nationals of third states including stateless persons can be regulated on the basis of Article 79 TFEU read in conjunction with the second sentence of Article 67(2) TFEU. 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. By contrast, the migration status of third-country national family members of Union citizens can be dealt with on the basis of Article 79 TFEU as a matter of legal competence.25 If the EU legislature decided to do so, it would have to ascertain in the drafting process whether the derived rights of third-country national family members of Union citizens benefit from a privileged treatment that commands priority over immigration legislation in cases of conflict (see below MN 31). It should be noted in this context that family members of static Union citizens who had not exercised their free movement rights and are living in the Member States of which they hold the nationality are not covered by corresponding EU rules: Member States remain free to apply domestic laws (see below MN 31). a) Entry and Residence. The generous formulation in Article 79(2)(a) TFEU con- 11 cerning ‘conditions of entry and residence’ shows that the Union has acquired 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 reunion is mentioned in the Treaty text by way of illustration; the EU legislature remains free to establish other status groups or to modify their configuration (see above MN 7). In practice, it has done so extensively in recent years, as the numerous legislative instruments commented on in this volume demonstrate. Corresponding permission for entry and residence can be handed out either by consulates in the countries of origin for the purpose of first admission by means of ‘visas’ or by domestic immigration authorities in the form of classic residence ‘permits’ for those who are already residing in the Member State concerned; both options are mentioned in Article 79(2)(a) TFEU, thereby illustrating the broad reach of the provision. While entry permits for short stays of no more than a few months are covered by Article 77(2)(a) TFEU, permission for 22

Cf. Article 5(3), (4) TEU. Similarly, see Labayle, L’espace, p. 463; ter Steeg, Einwanderungskonzept, p. 454; Peers, EU Justice, p. 393; and Kugelmann, Einwanderungs- und Asylrecht, para 113. 24 Article 79(1), (2)(b), (4) and (5) TFEU. 25 In practice, the Family Reunion Directive, in particular, does not extend to the entry of family members of Union citizens; see Hailbronner/Are´valo, Directive 2003/86/EC Article 3 MN 2. 23

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longer periods comes within the reach of Article 79(2)(a) TFEU. Read in conjunction, the 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). 12 There is little doubt, in contrast to the previous situation, that the Treaty of Lisbon established a competence for the EU to adopt legal rules on economic migration such as the Blue Card Directive 2009/50/EC for as long as Member States retain a certain flexibility regarding economic migration in accordance Article 79(5) TFEU (see below MN 26–27). The introduction of this caveat concerning Member State flexibility was based on the assumption that the EU had acquired a competence for economic migration as a matter of principle.26 The concept of an immigration policy based on a process of legal status change (see above MN 7) does not imply that first admission must necessarily bring about the option of long-term residence; the EU can provide for residence permits without the option of renewal, as in the example of the Seasonal Workers Directive 2014/36/EU. It follows from the broad designation of ‘conditions’ and ‘standards’ that Article 79(2)(a) TFEU supports rules on the revocation of residence permits in immigration legislation, including expulsion. 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 concerning refugees are covered by Article 78 TFEU as lex specialis, while complementary humanitarian protection statuses for those who do not qualify for asylum or subsidiary protection status under that provision can come within the reach of Article 79 TFEU. 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 has been rejected.27 If the EU decided to harmonise the current patchwork, it would have to be assessed in line with established ECJ case law on the demarcation of legal bases whether the object and purpose of corresponding rules argue in favour of Article 78 or Article 79 TFEU as the legal basis.28 In principle, there is nothing in the broad wording of Article 79(2)(a) TFEU that would prevent the harmonisation of national rules on complementary humanitarian protection. Similarly, the EU could adopt legislation on the regularisation of unauthorised residence on the basis of Article 79(2)(a) TFEU,29 although the principle of subsidiarity argues for a careful assessment of the necessity of pan-European legalisation schemes (see above MN 9); it is a matter of political judgment anyway whether and, if so, in what form one considers regularisation to be politically and morally appropriate. 14 By contrast, there is nothing in the wording of Article 79 TFEU indicating that the acquisition of nationality should be covered by EU immigration policy. Article 20(1) TFEU highlights, in addition, that Union citizenship shall be acquired by means of naturalisation at national level. Accordingly, the ECJ has reaffirmed on a number of 26 Cf. the proposal for a Article III-163(5) in the draft Constitutional Treaty by the Presidium 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. CONV 821/03, p. 83; see also Ladenburger/Verwirlghen, ‘Policies Relating to the Area of Freedom, Security and Justice’, in: Amato/Bribosia/de Witte (eds), Gene`se et destine´e de la Constitution europe´enne (Bruylant, 2007), p. 743, 764; as well as Peers, EU Justice, p. 393–394 et seq.; and Weiß, Article 79 TFEU para 3. 27 For a rich comparative study, see Schieber, Komplementa ¨ rer Schutz (Nomos, 2013), ch. 3. 28 See Schieber, ibid., p. 298–314; in practice, the distinction makes little difference, since the ordinary legislative procedure applies to both provisions. 29 Similarly, Schieber, ibid., p. 311; and Bast, Aufenthaltsrecht und Migrationssteuerung (Mohr Siebeck, 2011), p. 146–147.

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occasions that nationality law remains a national prerogative.30 It would require a formal Treaty change under Article 48 TEU to establish a supranational competence for the harmonisation of nationality laws in the European Union. Rules on migration in association agreement with third states creating privileged 15 links with a non-member country which must, at least to a certain extent, take part in the Community system are covered by Article 217 TFEU as lex specialis (see, mutatis mutandi, see Thym, Legal Framework for Entry and Border Controls, MN 15), while the adoption of negotiating positions in treaty bodies established on the basis of such agreements is covered, both procedurally and in substance, by Article 218(8)(1), (9) TFEU, also in areas which are, like Article 79(2) TFEU, subject to the ordinary legislative procedure.31 In line with settled case law, the ECJ may interpret such agreements, since they are an integral part of Union law.32 Corresponding privileges for nationals of specific countries under association agreements or pre-existing bilateral treaties of Member States are usually protected in EU legislation by means of explicit provisions on more generous national treatment (see Hailbronner/Thym, Constitutional Framework, MN 28–33), which are declaratory in nature international obligations contrast with internal EU legislation (see ibid., MN 56–59). 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 administrative procedure and judicial protection which, as leges speciales, supplant the principle of national procedural autonomy that applies in the absence of more specific legislative prescriptions (see Hailbronner/Thym, Constitutional Framework, MN 34–37). Notwithstanding the respect for national specificities and the principle of subsidiarity (see above MN 9),33 the Single Permit Directive 2011/98/EU and corresponding rules in other directives demonstrate the relevance of procedural requirements for immigration law; their introduction is covered by the competence in Article 79(2)(a) TFEU. When the Treaty explicitly refers to the delivery of residence permits ‘by Member States,’ it reaffirms that supranational rules on immigration should, as a matter of principle, be implemented at domestic level. EU institutions can support effective implementation and transnational cooperation, while the move towards a federal immigration authority would require a Treaty change (see Thym, Legal Framework for Entry and Border Controls, MN 8). b) Rights of Migrants and Free Movement. In contrast to Article 79(2)(a) TFEU, 17 part B of the provision does not concern conditions of entry but the rights of thirdcountry nationals during periods of legal residence.34 This implies that legislative instruments will usually be based jointly upon part A and B, since the legislature usually wants to regulate residence conditions and rights together.35 The unspecific wording used in the Treaty indicates that the legislature has broad discretion when deciding 30 See ECJ, Rottmann, C-135/08, EU:C:2010:104, paras 39–41, where the ECJ also required Member States to respect the principle of proportionality in the application of domestic nationality law as a matter of EU law; previously, see ECJ, Micheletti, C-369/90, EU:C:1992:295, para 10. 31 Cf. ECJ, C-81/13, United Kingdom vs. Council, EU:C:2014:2449, para 66; this entails, by way of example, that agreement no 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. 32 Settled case law in line with ECJ, Demirel, 12/86, EU:C:1987:400, para 9. 33 See also Article 4(2) TEU. 34 The Treaty of Lisbon clarified, in contrast to earlier formulations, 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: Azoulai/De Vries (eds), EU Migration Law, p. 14, 25. 35 Such dual legal basis is unproblematic if, like in the instant case, the same decision-making procedure applies.

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which rights should be harmonised. 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, under due respect for the principle of subsidiarity (see above MN 9), the degree of social rights in relation to social assistance or social security,36 while rules on migration in regular association agreements with third states are covered by Article 217 TFEU (see above MN 15). Moreover, the ECJ found that reciprocal arrangements with third states integrating the latter into the EU’s domestic social security coordination regime fall under Article 48 TFEU37 migration in association agreements with third states. 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.38 The general scheme of the EU Treaties suggests, however, that besides naturalisation (see above MN 12) the political rights of foreigners, including the right to vote in municipal elections, cannot be harmonised on the basis of Article 79(2)(b) TFEU in the absence of any indication to the contrary in Article 79(2)(b) TFEU mirroring the express provision in the Treaties on the voting rights of Union citizens.39 18 Article 79(2)(b) TFEU allows for the adoption of statutory rules on free movement and residence rights within the European Union for third-country nationals who have already been granted access to the EU territory.40 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 do provide for various degrees of free movement. The express reference to ‘conditions’ in the Treaty text accentuates the absence of a constitutional guarantee of free movement for thirdcountry nationals (see below MN 35). It remains the decision of the legislature to decide whether and, if so, under which conditions free movement within the EU should be allowed in different scenarios. It should be remembered, moreover, that the asymmetric geographic scope of the EU immigration acquis (see above MN 5) entails that free movement does not extend to all Member States, i. e. the United Kingdom, Ireland and Denmark are usually excluded. 19

c) Illegal Migration. Notwithstanding repeated academic and political criticism, Article 79(1) TFEU obliges the EU institutions to adopt ‘enhanced measures to combat illegal immigration’ (emphasis added). Corresponding actions can include both legislation and operative instruments of an executive or financial nature (see above MN 9).41 The wording leaves no doubt that these measures can include both the prevention of illegal entry and the termination of unauthorised residence, thereby supporting the overall objective of ensuring efficient migration management at all stages (see above MN 6–7). While Article 79(2)(a) TFEU covers the termination of legal residence status 36 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.’ 37 This applies to scenarios of (almost) complete and reciprocal integration into the single market and its social security coordination regime – not lesser degrees of trade liberalisation; see 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 ECJ, C-431/11, United Kingdom vs. Council, EU:C:2013:589, paras 49–64 for the European Economic Area in contrast to ECJ, C-81/13, United Kingdom vs. Council, EU:C:2014:2449, paras 48–58 with regard to Turkey. 38 By contrast, residence for economic purposes is covered by Article 79(2)(a) TFEU; see above MN 12. 39 Cf. Article 22 TFEU. 40 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; see Thym, Legal Framework for Entry and Border Controls, MN 18. 41 Similarly, Kotzur, Article 79 TFEU para 5; and Peers, EU Justice, p. 509–510

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(see above MN 12), part C applies to those entering or residing without authorisation, either because their residence permit expired or was revoked or because they never had one.42 In contrast to Article 77 TFEU (see Thym, Legal Framework for Entry and Border Controls, MN 16), Article 79(2)(c) TFEU embraces domestic measures to counter illegal residence that are not related to border control activities, such as the contents of the Employer Sanctions Directive 2009/52/EC. The express reference to ‘removal and repatriation’ clarifies, in contrast to earlier 20 formulations,43 that rules on deportation, as well as operative or financial support for national removal operations, are covered by Article 79(2)(c) TFEU, which served as the central legal basis for the Return Directive 2008/115/EC and the provisions concerning removal in the Asylum, Migration and Integration Fund.44 d) Trafficking in Human Beings. There is little doubt that the competence to combat 21 illegal migration in Article 79(2)(d) TFEU 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 highlighting the political significance of the issue in the eyes of the drafters of the Treaty.45 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 1 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.46

3. Readmission Agreements (Article 79(3) TFEU) Effective migration management depends upon the cooperation of third states, in 22 particular in so far as removals and repatriation are concerned. Notwithstanding the obligation under customary international law to enable the return of nationals,47 practical cooperation is often flawed and presents one of the main reasons for the mismatch between enforceable return decisions and actual returns48 – a discrepancy that readmission agreements with rules and procedures for effective cooperation are meant to counter. Previous uncertainties concerning the existence and scope of corresponding EU competences are remedied by the introduction of an express legal base49 designating a 42

See Peers, EU Justice, p. 509–510. Article 63(3)(3) EC Treaty as amended by the Treaty of Nice of 26 February 2001 (OJ 2006 C 321E/ 37) had referred to removals only. 44 Cf. Regulation (EU) No 516/2014 (OJ 2014 L 150/168). 45 The Convention Presidium did not give reasons for the initial proposal in doc. CONV 836/03, p. 83, available online at http://european-convention.europa.eu [last accessed 1 November 2015]. 46 Similarly, Peers, EU Justice, p. 510–511. 47 See Hailbronner, ‘Readmission Agreements and the Obligation on States under Public International Law to Readmit their own and foreign Nationals’, Zeitschrift fu¨r ausla¨ndisches o¨ffentliches Recht und Vo¨lkerrecht/Heidelberg Journal of International Law 57 (1997), 1, 2–5; and Coleman, Readmission Policy, ch. 2. 48 Cf. the Commission Communication, COM(2014) 199. 49 Arguably, an express provision was unnecessary, since Article 79(2)(c) TFEU can be read to comprise an implied treaty-making power in line with the ECJ case law on external competences; cf. Muzak, Article 79 TFEU, in: Mayer/Sto¨ger (eds), Kommentar zu EUV und AEUV (Maunz, looseleaf: 141th edn, 2012), para 23. 43

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shared competence.50 Article 3(2) TFEU does not change this conclusion, since the Return Directive regulates the conditions for removal, not cooperation with third states and corresponding practical arrangements.51 The procedure for the negotiation and conclusion of EU readmission agreements follows Article 218 TFEU, which requires the consent of the European Parliament.52 This implies that Member States retain the power to conclude national readmission agreements with third states as long as the EU institutions have not decided to exercise their supranational competence.53 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 60), Article 79(2)(a) TFEU would have to be used as an additional legal basis. 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 Hailbronner/Thym, Constitutional Framework, MN 7).54 Corollary rules on migration in trade or association agreements are covered by the exclusive EU competence for the Common Commercial Policy or relevant other Treaty competences for external action and there is no need to activate Article 79 TFEU in addition (see Thym, Legal Framework for Entry and Border Controls, MN 15).

4. National Integration Policies (Article 79(4) TFEU) 24

Article 79(4) TFEU allows for the adoption of measures to provide incentives and support for national integration policies ‘excluding any harmonisation of the laws and regulations of the Member States.’ Corresponding formulations have been used 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 rules.55 Article 79(4) TFEU should be classified, therefore, as a support and coordination competence in line with Article 2(5) TFEU. The introduction of the new restrictive provision in Article 79(4) TFEU responded to years of sometimes protracted disputes about the permissibility of an autonomous EU integration policy.56 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 50 The shared character flows from the formulation ‘may’ (French: peut) and the absence of readmission agreements from the list of exclusive powers in Article 3(1) TEU; see Billet, ‘EC Readmission Agreements’, EJML 12 (2010), p. 45, 60–63; and Coleman, Readmission Policy, p. 75–84; an exclusive character had been discussed, for the previous Treaty regime, by Kuijper, ‘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. 51 The different regulatory focus of the rules in the Return Directive 2008/115/EC and readmission agreements implies that no exclusive so-called ‘AETR competence’ on the basis of corresponding ECJ case law for implied external treaty-making powers has come about when the Directive was adopted; cf. Billet, ibid., p. 60–63. 52 Given that Article 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, ibid., p. 63–65. 53 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, ibid., p. 60–63. 54 On the objectives of external action, see Article 21 TEU; on the necessary policy coherence, see Kotzur, Article 77 TFEU para 10. 55 See, by way of example, Articles 165(4), 166(4), 167(5) and 168(5) TFEU. 56 See Carrera, In Search, ch. 3.

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governments of the Member States in order to emphasise the limited scope of EU competences.57 Today, such complex constructions are no longer necessary, since Article 79(4) TFEU provides for an unequivocal supranational competence, which, however, excludes harmonisation.58 Measures that can be adopted on this basis include the Asylum, Migration and Integration Fund.59 These must always comply with the principle of subsidiarity (see above MN 9). It should be noted that the exclusion of harmonisation concerns Article 79(4) TFEU 25 only, not other legal bases, such as Article 79(2)(a), (b) TFEU. Whenever their interpretation allows for legally binding measures concerning immigrant integration, Article 79(4) TFEU does not prevent recourse to other legal bases.60 This entails that EU immigration legislation can include rules on immigrant integration, such as the requirement for integration measures in Article 7(2) Family Reunion Directive 2003/86/ EC. Moreover, the broad meaning of the term ‘integration’ in EU immigration law (see below MN 43–47) implies that provisions that are not officially designated as integration instruments can also have a profound impact upon immigrant integration, such as labour market access. 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.61 More generally, Article 79(4) TFEU signals that the EU Treaties attach great importance to national integration policies – an argument that can affect the interpretation of integration-related policy provisions (see below MN 44).

5. Access to the Labour Market (Article 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.62 While some commentators rejected the existence of a supranational competence,63 others claimed that the Treaty provisions on social policy should be activated.64 This debate has become moot as the result of a clarification in the Lisbon Treaty that the EU legislature can establish rules on economic migration subject to the caveat in Article 79(5) TFEU (see above MN 12). 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 migration sensu stricto, i. e. admission of 57

Cf. Council doc. 14615/04 of 19 November 2004. 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. 59 See Regulation (EU) No 516/2014 (OJ 2014 L 150/168). 60 Cf. ECJ, Germany vs. Council & Parliament, C-376/98, EU:C:2000:544, para 77–79. 61 See Hailbronner, Immigration and Asylum, p. 89–90; and ter Steeg, Einwanderungskonzept, p. 464– 564 62 Discussions were further complicated by a 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. 63 Cf. Hailbronner, ‘European Immigration and Asylum Law under the Amsterdam Treaty’, CML Rev. 35 (1998), p. 1047, 1049–1050; for a restrictive position, see Knauff, ‘Europa¨ische Einwanderungspolitik: Grundlagen und aktuelle Entscheidungen’, Zeitschrift fu¨r Europarechtliche Studien 2004, p. 11, 19–23; more generous was ter Steeg, Einwanderungskonzept, p. 326–333. 64 See Brinkmann, ‘The Immigration and Asylum Agenda’, ELJ 10 (2004), p. 182, 187–188; and Guild and Peers, ‘Out of the Ghetto?’ in ibid and N Rogers (eds), EU Immigration and Asylum Law. Text and Commentary (Martinus Nijhoff, Leiden 2006), p. 81, 101–104. 58

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the highly qualified, seasonal workers or other foreigners seeking employment.65 In this respect, the provision should be read as being comprehensive: 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.66 27 A comparison of the different language versions of Article 79(5) TFEU shows that the exemption concerns national rules ‘to determine volumes of admission’ (French: fixer les volumes d’entre´e; German: wie viele … einreisen dürfen) without indicating precisely how this determination of the volumes of admissions is to be achieved at national level. Some argue that it should be understood to cover national ‘quota schemes’ for workers only.67 In the light of the general wording and the interpretative principle of effet utile (see Hailbronner/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.68 It should be read, instead, to require the EU legislature to allow a certain flexibility for the Member States in the regulation of economic migration. EU directives can establish individual rights (see Hailbronner/Thym, ibid., MN 15), but the conditions for the existence of these rights prescribed in EU legislation should provide sufficient flexibility 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.69 In cases of doubt the ECJ will have to interpret secondary legislation and may, in doing so, have recourse to Article 79(5) TFEU as an argument to the effect that exemptions are legitimate.

III. Overarching Principles 1. Free Movement of Union Citizens 28

The emergence of distinct Treaty regimes for Union citizens and third-country nationals was a gradual process. Originally, the Treaty of Rome knew neither ‘thirdcountry nationals’ nor ‘Union citizens’, but only ‘workers.’70 It would be wrong, however, to assume that the European founding fathers 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 the status of citizens from communist East Germany.71 As a 65 Similarly, see Ladenburger/Verwirlghen, ‘Policies Relating to the Area of Freedom, Security and Justice’, in: Amato/Bribosia/de Witte (eds), Gene`se et destine´e de la Constitution europe´enne (Bruylant, 2007), p. 743, 764; and Peers, EU Justice, p. 396. 66 In contrast to EU citizens, legislation on third-country nationals does not usually provide for a statutory right to enter EU territory in order to seek work at present; it usually requires a job offer. 67 See Peers, EU Justice, p. 396; Bast, Aufenthaltsrecht und Migrationssteuerung (Mohr Siebeck, 2011), p. 149–153; and Weiß, Article 79 TFEU para 48. 68 Most Member States 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 workers at the time when the provision was drafted, while Germany was considering the introduction of a domestic quota at the time, although the project was abandoned. 69 See, by way of example, Articles 6, 8(2) Blue Card Directive 2009/50/EC or Articles 5(2), 7 Seasonal Workers Directive 2014/36/EU. 70 Cf. Groenendijk, ‘Categorizing Human Beings in EU Migration Law’, in: Bonjour et al. (eds), The Others, p. 21, 25-31. 71 See Goedings, Labor Migration in an Integrating Europe (SDU Uitgevers, 2005), p. 128-135; the accusation that the limitation of the free movement of workers to Union citizens was the result of ‘revisionist interpretation’ (Guild and Peers, ‘Out of the Ghetto?’ in ibid and N Rogers (eds), EU

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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 1). In the Maastricht Treaty, the introduction of distinct Treaty regimes for ‘Union citizenship’72 and ‘nationals of third countries’73 was a parallel development that has defined EU rules ever since. It is important 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 constitutional 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 enshrined at Treaty level (see below MN 33–36) for thirdcountry nationals. In a supranational legal order based upon 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 unanimous position of all Member States in the Council.74 It is well known that judges in Luxembourg have regularly had recourse to the constitutional guarantee of free movement75 and the subsequent introduction of Union citizenship76 in order to enhance citizens’ rights by means of dynamic interpretation. Corresponding case law on the free movement of citizens concerns the status of workers, the self-employed, service recipients, students and other Union citizens with sufficient resources.77 Secondary legislation with more detailed rules can be found in the Citizenship Directive 2004/ 38/EC and Regulation (EU) No. 492/2011 on the freedom of movement for workers.78 The ECJ maintains, to this date, that the application of free movement rights requires 30 a cross-border element as a matter of principle. Union citizens living in the state of which they have the nationality cannot usually rely upon the fundamental freedoms; to do so requires them to move to another Member State or to have lived there for an extended period.79 This requirement of a cross-border element entails that purely internal situations are not covered by the free movement guarantees for Union citizens.80 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.81 Free movement experts rightly complain that corresponding case law is highly complex – and some have argued that the purely internal rule should be abandoned so as to Immigration and Asylum Law. Text and Commentary (Martinus Nijhoff, Leiden 2006), p. 81, 114) ignores the historic context. 72 Union citizenship was first introduced by Article 8 EC Treaty as amended by the Treaty of Maastricht (OJ 1992 C 224/36). 73 Article K.1 EU Treaty, ibid. 74 On the ambiguous relationship in practice, see Dougan, ‘The Bubble that Burst’, in: Adams et al. (eds), Judging Europe’s Judges (Hart, 2013), p. 127, 145–153; and Hailbronner, ‘Union Citizenship and Access to Social Benefits’, CML Rev. 42 (2005), 1245–1267. 75 Cf., by way of example, ECJ, Bouchereau, 30/77, EU:C:1977:172, para 33; and ECJ, Orfanopoulos and Olivieri, C-482/01 and C-493/01, EU:C:2004:262, para 65. 76 Cf. ECJ, Baumbast & R, C-413/99, EU:C:2002:493, paras 81–82. 77 For an overview, see Boeles et al., European Migration Law, ch. 2; or any textbook on EU law. 78 See, on the latter, OJ 2011 L 141/1. 79 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, O. & B., C-456/12, EU:C:2014:135, paras 37–54. 80 See ECJ, Uecker & Jacquet, C-64 & 65/96, EU:C:1997:285, paras 23–24. 81 See O’Leary, ‘The Past, Present and Future of the Purely Internal Rule in EU Law’, in: Dougan et al. (eds), Empowerment and Disempowerment of the European Citizen (Hart, 2012), p. 36–71.

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abolish the phenomenon of reverse discrimination.82 The ECJ has, rightly in my view,83 not followed this argument despite an initial temptation to move in this direction in the Ruiz Zambrano judgment, the implications of which were watered down considerably in follow-up rulings.84 Of course, whenever free movement rules cannot be activated in purely internal situations, national constitutions and the European Convention on Human Rights may be applied. 31 Unfortunately, the overall picture is blurred by a grey area of overlap between rules for Union citizens and third-country nationals, since family members of Union citizens with the nationality of a third state can in certain circumstances rely indirectly upon the free movement provisions,85 for instance when a French national is married to a Mexican national with whom she lives in the United Kingdom. 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.86 The Court of Justice has consistently interpreted the free movement guarantees of Union citizens to embrace guarantees for spouses and other family members by means of a legal reflex in the form of ‘derived rights’87 where the denial of family reunion can be construed as a restriction to the right of free movement of the Union citizen. In a series of judgments in the 2000s, judges in Luxembourg increased the level of protection;88 this process culminated in the Ruiz Zambrano judgment and follow-up rulings that at first seemed to considerably enhance the level of protection, although the ECJ later clarified that it concerned mainly third country national family members of minor Union citizens (see above MN 31). In cases of conflict, the rights of third-country national family members of Union citizens prevail over national immigration law or secondary EU legislation, since they emanate, at least indirectly in the form of derived rights, from constitutional free movement guarantees.89 32 In a number of 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 31–32) and EU immigration and asylum instruments.90 The official reasoning given by the Court lists the Citizenship Directive 2004/38/EC and immigration instruments in parallel, thereby indicating that the Family Reunion Directive 2003/86/EC and the Long-Term Residents Directive 2003/109/EC in 82 Cf. Nic Shuibhne, ‘Free movement of persons and the wholly internal rule: time to move on?’, CML Rev. 39 (2002), p. 731, 741–760; and Tryfonidou, Reverse Discrimination in EC Law (Kluwer, 2009), ch. 4. 83 See Thym, ‘Frontiers of Citizenship’, in: Kochenov (ed), EU Citizenship and Federalism. The Role of Rights (CUP, 2016), sect. 2.4 (forthcoming). 84 Cf. ECJ, Ruiz Zambrano, C-34/09, EU:C:2011:124; ECJ, Dereci et al., C-256/11, EU:C:2011:734; and ECJ, O & S, C-356/11 & C-357/11, EU:C:2012:776; for further comments, see Reynolds, ‘Exploring the “Intrinsic Connection” between Free Movement and the Genuine Enjoyment Test’, E.L. Rev. 38 (2013), p. 376–392; and Thym, ‘Grenzen der Unionsbu¨rgerschaft’, Europarecht Beiheft 1/2015, p. 135, 141–148. 85 See Barbou des Places, ‘Droit communautaire de la liberte ´ de circulation et droit des migrations’, in: L’Union europe´enne: Union de droit, Union des droits. Me´langes en l’honneur de Philippe Manin (Pedone, 2010), p. 341, 350–356 and Thym, ‘Family as Link’, in: Verschweren (ed.), Where do I belong? (Intersentia, 2016), forthcoming. 86 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). 87 ECJ, Dereci et al., C-256/11, EU:C:2011:734, para 55; for a taxonomy of different categories see Barrett, ‘Family Matters’, CML Rev. 40 (2003), p. 369–421. 88 See Spaventa, ‘From Gebhard to Carpenter: Towards a (non-)Economic European constitution’, CML Rev. 41 (2004), p. 743–773; Epiney, ‘Von Akrich bis Metock’, Europarecht 2008, p. 847–583; and Costello, ‘Case Note: Metock’, CML Rev. 46 (2009), p. 587, 611–614. 89 The precedence of free movement law over the legislative border control regime has been reiterated by the ECJ, see Thym, Legal Framework for Entry and Border Controls, MN 16. 90 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.

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particular present an alternative frame of reference for the determination of immigration statuses.91 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.92 This reference to immigration law and human rights requirements as integral parts of the area of freedom, security and justice takes centre stage in cases not involving family members of Union citizens from third states. In such ‘pure’ immigration scenarios, the intricate demarcation between citizens’ rights and the human rights of foreigners, which defines the grey area of third-country national family members of Union citizens and of Turkish nationals (see Hailbronner/Thym, Constitutional Framework, MN 19), is irrelevant. The solution to ‘pure’ immigration cases follows the rules governing the area of freedom, security and justice – not EU citizenship.

2. Third-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 Hailbronner/Thym, Constitutional Framework, MN 5–7). In contrast to Union citizens, thirdcountry nationals cannot invoke far-reaching mobility guarantees with constitutional status in the EU Treaties (see above MN 29), although this exclusion from the free movement regime does not imply that third-country nationals have no constitutional assurances on their side. They certainly have: third-country nationals can invoke human rights, including the EU Charter (see above MN 32). When it comes to migration, the Charter principally reaffirms existing rules under the European Convention of Human Rights together with some novel guarantees,93 in the light of which the ECJ interprets statutory rules on immigration (see Hailbronner/Thym, Constitutional Framework, MN 14). This rejection of the traditional notion of unfettered state discretion concerning migration in the light of human rights is significant, and I have proposed elsewhere to construe it as the ‘cosmopolitan outlook’ of EU migration law.94 It does not diminish the relevance of this finding to recognise that human rights guarantees nonetheless fall short of citizens’ rights to free movement. Closer inspection of the existing human rights guarantees demonstrates that they do 34 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.95 In the field of legal migration, this has been reaffirmed in the context of the protection of private and family life under Article 8 ECHR and Article 7 EU Charter by both the ECtHR and the ECJ (see below MN 52). With regard to economic migration, Article 15 EU Charter reiterates the same conclusion. It starts with a reminder of citizens’ rights to free movement under paragraph 2 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 91 See, in particular, ECJ, Dereci et al., C-256/11, EU:C:2011:734, paras 71–72; and ECJ, Iida, C-40/11, EU:C:2012:2405, paras 78–81; see also Thym, Constitutional Rationale, p. 714–716. 92 Cf. ECJ, Dereci et al., ibid., paras 69–70; and ECJ, O & S, C-356/11 & C-357/11, EU:C:2012:776, para 59; see also ECJ, Carpenter, C-60/00, EU:C:2002:434, paras 41–45. 93 For an overview, see Groß, ‘Migrationsrelevante Freiheitsrechte der EU-Grundrechtecharta’, Zeitschrift fu¨r Ausla¨nderrecht 2013, p. 106–110; and Wiesbrock, Legal Migration, p. 208–229. 94 See Thym, Constitutional Rationale, p. 725–735. 95 See Iglesias Sa ´nchez, Rights, p. 138–148; and Thym, Constitutional Rationale, p. 718–721.

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Union.’96 This sounds progressive, but the substance is meagre given that equal working conditions for legally resident third country nationals are uncontroversial in today’s Europe (see Iglesias Sa´nchez, Directive 2011/98/EU Article 12 MN 16–17). Thus Article 15 of the Charter reiterates that third-country nationals, in contrast to Union citizens, do not have unrestricted access to the EU labour market; the EU legislature maintains discretion over whether and, if so, under which circumstances to grant individual rights for economic migration. 35 In a similar vein, the Charter differentiates movements within the European Union once a third-country national has been admitted to the EU territory, for instance when a Moroccan national residing legally in Spain wants to take up employment in Germany. While Union citizens benefit from extensive free movement in such scenarios,97 Article 45(2) of the Charter states that similar rights ‘may be granted’ to third-country nationals in accordance with the Treaties, thereby emphasising that the scope of intraEuropean mobility is determined in the legislative process (see above MN 17–18).98 Again, the EU institutions retain a principled discretion to decide upon the degree of individual rights to enter EU Member States. The legislator may opt for a generous statutory migration regime for third-country nationals, but it is not constitutionally obliged to do so. 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 rights of migrants depends on the contents and context of the legislative instrument in question: there is no assumption that they should be interpreted in parallel to the free movement guarantees of Union citizens (see Hailbronner/Thym, Constitutional Framework, MN 15). 36 It is well known among experts of EU migration law that the European Council in Tampere in 1999, in addition to their plea to manage migration flows efficiently and to combat illegal immigration, called upon EU institutions to ‘ensure fair treatment of third-country nationals who reside legally on the territory of its Member States. A more vigorous integration policy was to aim at granting them rights and obligations comparable to those of EU citizens.’99 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.’100 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 Hailbronner/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.101 Thirdly, it was not until the adoption of the Long-Term Residents Directive 2003/109/EC that a more specific commitment was realised by establishing an extensive set of rights for long-term residents. Fourthly, similar formulations were not elevated to Treaty level when the European Convention 96

Article 15(3) EU Charter; emphasis added. This is confirmed by Article 45(1) EU Charter, which has to be interpreted in line with the fundamental freedoms in accordance with Article 52(2), (7) EU Charter and the official explanations (OJ 2007 C 303/17). 98 As a ‘principle’, Article 45(2) can be relied upon only indirectly, once legislation has specified the conditions of free movement; see Hailbronner/Thym, Constitutional Framework, MN 49; and Iglesias Sa´nchez, Free Movement, p. 789–800, also for international human rights law that only guarantees free movement within (not: between) states, ibid., p. 794–796. 99 European Council, Presidency Conclusions of the Meeting on 15/16 October 1999 in Tampere, para 18. 100 Ibid., para 21. 101 See Murphy/Acosta Arcarazo, ‘Rethinking Europe’s Freedom, Security and Justice’, in: ibid. (eds), EU Security, p. 1, 4–9. 97

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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 (see Hailbronner/Thym, ibid., MN 7). For legal analyses, the Treaty provisions, together with the Charter, are the central point of reference, not the political commitment of the 1999–2004 period.

3. Non-Discrimination Within the EU legal order, the principle of non-discrimination on grounds of 37 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 only to Union citizens, it has been confirmed by the ECJ that Article 18 TFEU cannot be 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.’102 This position of the Court has been criticised by academics,103 but it seems unlikely that judges in Luxembourg will change course. Article 18 TFEU is closely linked to the concept of Union citizenship (see above MN 28–29) and the realisation of a single market in relation to which the abolition of barriers to trade rests, like in the case of many agreements on economic integration, on the principle of national treatment.104 This rationale cannot be extended straightforwardly to migration law; for rules on migration the established standards of human rights law are the appropriate benchmark. The EU Charter confirms, in line with earlier ECJ case law, that EU law must respect 38 the principle of equality before the law, which embraces, as leges speciales, more specific guarantees against discrimination on grounds of sex, race, colour, ethnic or social origin, genetic features, et cetera.105 This general human right to equality before the law is important for EU immigration law.106 It can be applied to both EU legislation and national measures implementing Union law (see Hailbronner/Thym, Constitutional Framework, MN 47–48). As a freestanding equal treatment provision, Article 20 EU Charter does not depend, in contrast to Article 14 ECHR,107 upon the parallel applicability of other human rights. It prohibits, in line with settled case law, any unequal treatment that cannot be justified by legitimate considerations in a proportionate manner.108 Since immigration law often applies to foreigners only, it may well be the case that there is no violation due to non-comparability.109 Similar guarantees under the 102 ECJ, Vatsouras & Koupatantze, C-22/08 & C-23/08, EU:C:2009:344, para 52; see also ECJ, Khalil, C95/99-98/99 & C-180/99, EU:C:2001:532, para 40. 103 See, by way of example, 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; 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. 104 See Iglesias Sa ´nchez, Fundamental Rights, p. 149–150. 105 See Articles 20 and 21(1) EU Charter, while the prohibition of discrimination on grounds of nationality in Article 21(2) EU Charter corresponds to Article 18 TFEU in accordance with Article 52(2) and (7) EU Charter and the official explanations (OJ 2007 C 303/17) and does not cover third-country nationals as a result. 106 Similarly, see Hublet, ‘Some Foreigners More Equal than Others under EU Law’, in: Bonjour et al. (eds), The Others, p. 63, 72–74; Bribosia, Les politiques d’inte´gration, p. 54–61; and Wiesbrock, ‘Granting Citizenship-related Rights to Third-Country Nationals’, EJML 14 (2012), p. 63, 80–82. 107 See Wiesbrock, Legal Migration, p. 226–229. 108 See Bell, ‘Article 20 (Equality before the Law)’, in: Peers et al. (eds), The EU Charter of Fundamental Rights. A Commentary (C.H. Beck/Hart, 2014), p. 563–578; and Bribosia, Les politiques d’inte´gration, p. 55–61. 109 This conclusion was reached for integration measures in the form of language tests for long-term residents by ECJ, P & S, C-579/13, EU:C:2015:369, paras 39–43.

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ECHR have been activated by the ECtHR to scrutinise legislation limiting the access to social benefits for legally resident migrants,110 although the ECtHR has more recently reaffirmed that Member States retain a certain margin of appreciation and that Article 14 ECHR does not guarantee unconditional equality in relation to social benefits, in particular for migrants with a temporary or precarious residence status.111 The ECtHR recognised, in general terms, that ‘immigration status is not an inherent or immutable personal characteristic such as sex or race, but is subject to an element of choice’112 – and weighs less heavily than other, more suspicious forms of unequal treatment.113 Similar results concern other dimensions of equal treatment during periods of legal residence.114 39 Judgments reaffirming the relevance of equal treatment for immigration law concern primarily the set of rights during periods of legal residence. Corresponding statutory guarantees for equal treatment can be found in most directives on EU immigration law, such as Article 12 Single Permit Directive 2011/98/EU, Article 14 Blue Card Directive 2009/50/EC or Article 11 Long-Term Residents Directive 2003/109/EC – and the ECJ has reaffirmed that it stands ready to scrutinise potential exceptions laid down in these provisions in the light of human rights law,115 which does not command equal treatment in all scenarios (see above MN 38). These statutory guarantees in immigration laws are reinforced by the EU Anti-Discrimination Directives that apply to employment-related discrimination and, with regard to considerations of racial or ethnic origin, to the provision of services and to other economic sectors.116 EU antidiscrimination rules have in many Member States been instrumental in enhancing a culture of equal treatment, including through procedural guarantees and the introduction of equality bodies for the supervision of public and private practices.117 40 The equal treatment guarantees described above apply primarily during periods of legal residence; they can have an impact on the degree of social or economic participation and enhance the rights of migrants in various domains, such as employment law, social housing, education and other public services. By contrast, they do not apply directly to the determination of immigration statuses. In the Anti-Discrimination Directives (see above MN 39), the non-applicability to immigration law sensu stricto is laid down in express exemptions according to which the Directives ‘[do] not cover differences of treatment based on nationality and [are] without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals … in the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals … concerned.’118 In other words, immigration law is not 110 Cf. ECtHR, judgment of 16 September 1996, No. 17371/90, Gaygusuz v. Austria; ECtHR, judgment of 8 April 2013, No. 17120/09, Dhabi v. Italy, paras 45–54; and Minderhoud, ‘Social Security Rights of Third-Country Nationals’, Journal of Social Security Law 17 (2010), p. 227–239. 111 See ECtHR, judgment of 30 September 2003, No. 40892/98, Koua Poirrez v. Franc, paras 46–49; and ECtHR, judgment of 21 June 2011, No. 5335/05, Ponomaryovi et al. v. Bulgaria. 112 ECtHR, judgment of 27 November 2011, No. 56328/07, Bah v. the United Kingdom, para 47. 113 Ibid., para 47; by contrast, earlier judgments had emphasised that unequal treatment based on nationality may be subject to a strict scrutiny; cf. Groenendijk, Third-Country Nationals, p. 81–82. 114 For a comparative analysis, see Sarole ´a, Droits de l’homme et migrations (Bruylant, 2006), p. 483–598. 115 Cf. ECJ, Kamberaj, C-571/10, EU:C:2012:233, paras 76–81. 116 See, for employment, Directive 2000/78/EC (OJ 2000 L 303/16) and, for equal treatment irrespective of racial or ethnic origin, Directive 2000/43/EC (OJ 2000 L 180/22). 117 See Guild, The Legal Elements of European Identity (Kluwer, 2004), ch. 11; and Morano-Foadi/de Vries, ‘The Equality Clauses in the EU Directives on Non-Discrimination and Migration/Asylum’, in: ibid./ Malena (eds), Integration for Third-Country Nationals in the European Union (Elgar, 2012), p. 16–44. 118 Article 3(2) Directive 2000/78/EC (OJ 2000 L 303/16); and, similarly, Article 3(2) Directive 2000/43/ EC (OJ 2000 L 180/22); for further reading, see Bribosia, Les politiques d’inte´gration, p. 53–64; and Muir,

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subject to the Anti-Discrimination Directives which instead affect the scope of rights during periods of legal residence. The statutory exemptions in the Anti-Discrimination Directives do not extend ipso 41 jure to human rights law, the application of which requires careful analysis nonetheless. The ECtHR in particular has been reluctant to challenge immigration law sensu stricto in the light of Article 14 ECHR (in contrast to social benefits cases, see above MN 38). Judges in Strasbourg have recognised, on various occasions 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.’119 With regard to the differential treatment of different status groups within immigration law, such as asymmetric provisions for temporary and long-term residents or the distinct treatment of different countries of origin, the ECtHR requires the states to rely upon a proportionate justification.120 Such objective and reasonable justification for distinctions within immigration law can be available, although it remains difficult to distil clear patterns from the case law.121 While the ECtHR has at times rejected a justification,122 it has on other occasions recognised legitimate reasons based on the generic assumption ‘that there are in general persuasive social reasons for giving special treatment to those who have strong ties with a country, whether stemming from birth within it or from being a national or a long-term resident.’123 It is well established that, in regular circumstances differential, treatment of status 42 groups or countries of origin in immigration law does not constitute discrimination on grounds of race or ethnic origin.124 Experts on migration law have tried repeatedly to push judges in a different direction,125 albeit without success. The ECtHR and the ECJ seem to instead prefer the more flexible general equal treatment standards.126

4. Social Integration EU immigration legislation can contain rules concerning the integration of migrants 43 into host societies and the EU indeed promotes national integration policies in various respect, among others through the common basic principles for Immigrant Integration Policy (see above MN 24–25). The meaning and purpose of integration policies have been discussed controversially at national and European level in recent years. It is possible to distil two potentially opposing approaches to migrant integration policies, the first one concentrating on equal rights as an end in itself irrespective of the actual degree of social integration, while the second approach focuses on social realities on the ‘Enhancing the Protection of Third-Country Nationals against Discrimination’, Maastricht Journal of European and Comparative Law 18 (2011), p. 136–156. 119 ECtHR, judgment of 21 June 2011, No. 5335/05, Ponomaryovi et al. v. Bulgaria, para 54; and ECtHR, judgment of 18 February 1991, No. 12313/86, Moustaquim v. Belgium, para 49. 120 See ECtHR, judgment of 27 November 2011, No. 56328/07, Bah v. the United Kingdom, paras 38– 47; and ECtHR, judgment of 25 March 2013, No. 38590/10, Biao v. Denmark, paras 79–91. 121 For a rich analysis, see Bribosia, Les politiques d’inte ´gration, p. 55–61. 122 See ECtHR, judgment of 6 November 2012, No. 22341/09, Hode & Abdi v. the United Kingdom. 123 ECtHR, judgment of 25 March 2013, No. 38590/10, Biao v. Denmark, para 94 reiterating an argument that was originally put forward in ECtHR, judgment of 28 May 1985, Nos. 9214/80 et al., Abdulaziz, Cabakes & Balkandali v. the United Kingdom, para 88. 124 See ECtHR, Abdulaziz, Cabakes & Balkandali v. the United Kingdom, ibid., paras 85–86 and the judgments mentioned above MN 41; as well as ECJ, Kamberaj, C-571/10, EU:C:2012:233, paras 48–50. 125 See Groenendijk, Third Country Nationals, p. 86–88; Dembour, ‘Still Silencing the Racism Suffered by Migrants…’, EJML 11 (2009), p. 221–234; and de Vries, ‘Towards Integration and Equality for ThirdCountry Nationals? Reflections on Kamberaj’, E.L. Rev. 38 (2013), p. 248, 254–255. 126 Cf. Bribosia, Les politiques d’inte ´gration, p. 61–64.

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ground regarding various degrees of social integration, such as knowledge of the local language, civic tests, labour market participation or other criteria. Debates on migrant integration at European level can be described, by and large, as a struggle between the rights-focused standpoint and the broader social or cultural outlook.127 While the historic experience of Union citizenship and the political position put forward by the European Council in Tampere (see above MN 36) originally promoted the rights-based approach, EU legislation and corresponding soft law instruments on immigration (see above MN 25) later adopted a more nuanced approach.128 44 EU primary law does not opt for a distinct position with regard to third-country nationals. It does in particular not oblige the legislature to follow the model of Union citizenship when adopting rules for third-country nationals (see above MN 33–36), and it should be noted, moreover, that the ECJ has started emphasising broader social elements transcending a rights-based approach in the field of Union citizenship.129 Article 79(4) TFEU emphasises the significance of integration policies at national level for immigration law (see above MN 25), although it is submitted that this provision should not be understood as a definite Treaty-enshrined statement about the precise course to be followed. The inherent thematic breadth of the concept of migrant integration, which may concern various policy fields such as the labour market, education or culture,130 requires political choices about the relative weight of different aspects (see above MN 4). Therefore, instead of prescribing a specific integration policy, the EU Treaties entrust the EU legislature to decide on the direction to be taken. In light of the principle of subsidiarity, it can be legitimate (see above MN 7) not to lay down detailed benchmarks in EU legislation, thereby allowing the Member States to decide upon appropriate standards for migrant integration domestically – as in the case of the Family Reunification Directive (see Klarmann/Hailbronner, Directive 2003/86/EC Article 7 MN 40–46) and the Long-Term Residents Directive (see Thym, Directive 2003/109/EC Article 5 MN 13–17). 45 In the political and academic debate, integration requirements are often presented as indicators of a restrictive and potentially even xenophobic approach based upon a classic understanding of the nation-state as a closed and culturally homogeneous club.131 While this can be correct in specific scenarios, the concept of migrant integration is not intrinsically linked to nationalism, which the European Union was, among other things, created to overcome. European societies change in response to migration, and the Common Basic Principles for Immigrant Integration Policy emphasise, on the basis of a broad conception of migrant integration covering diverse policy fields, that it constitutes a ‘continuous two-way process of mutual accommodation, not a static outcome.’132 It is possible to defend integration policies as post-modern instruments for the norma-

127 See Carrera, In Search, ch. 3; and Groenendijk, ‘Legal Concepts of Integration in EU Migration Law’, EJML 6 (2004), p. 111–126. 128 On the practice of the EU institutions, see Carrera, In Search, ch. 3; and ibid., ‘Integration of Immigrants in EU Law and Policy’, in: Azoulai/de Vries (eds), EU Migration Law, p. 149, 151–169. 129 See Thym, ‘The Elusive Limits of Solidarity’, CML Rev. 52 (2015), p. 17, 34–39; and Barbou des Places, ‘Integration’, in: Azoulai et al. (eds), Constructing the Person (Hart, 2016), sect. 3 (forthcoming). 130 See the Common Basic Principles for Immigrant Integration Policy above MN 24; and Groß, ‘Integration of Immigrants: The Perspective of European Community Law’, EJML 7 (2005), 145, 151–162; 131 Cf. Carrera, In Search, p. 440–448; Acosta Arcarazo/Martire, ‘Trapped in the Lobby: Europe’s Revolving Doors and the Other as Xenos’, EL Rev. 39 (2014), p. 362, 363–366, 375–378; and Kostakopoulou/Carrera/Jesse, ‘Doing and Deserving’, in: Guild et al. (eds), Illiberal Liberal States (Ashgate, 2009), p. 167, 179–186. 132 See the Common Basic Principle No. 1 for Immigrant Integration Policy, Council doc. 14615/04 of 19 November 2004.

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tive reconfiguration of European societies133 on the basis of the recognition that social cohesion can also be promoted by means of the instruments of immigration law.134 Whether or not specific policies are acceptable from a legal perspective depends on the position taken by the legislature and the interpretation of human rights by national and European courts that must be respected by the EU institutions and the Member States when implementing Union law (see Hailbronner/Thym, Constitutional Framework, MN 47–48). In its case law on Article 8 ECHR (see below MN 52–56), the ECtHR has in recent 46 years accentuated the significance of social integration, emphasising that the ‘solidity of social, cultural and family ties with the host country and with the country of [origin]’135 are important factors in the proportionality assessment. It has put this position into effect on numerous occasions and in parallel to the emerging debate about migrant integration policies at national and European level,136 thereby highlighting that human rights law can be compatible with a more expansive notion of migrant integration provided that states do not lay down disproportionate standards. In its first judgment on the Family Reunion Directive, the European Court of Justice 47 in Luxembourg noted that ‘the concept of integration is not defined’ in the Directive and must be applied, nonetheless, by Member States in conformity with human rights.137 The ECJ later embraced a broader conceptualisation of migrant integration by stating, in the context of both the Long-Term Residents Directive 2003/109/EC and the Family Reunion Directive 2003/86/EC, that the acquisition of language skills (if necessary by means of a mandatory test) ‘greatly facilitates communication … and, moreover, encourages interaction and the development of social relations between them. Nor can it be contested that [it] makes it less difficult for third-country nationals to access the labour market and vocational training.’138 It reiterated this approach by stating, in the context of the association council decisions for Turkish workers, that ‘the acquisition of the nationality of the host Member State represents, in principle, the most accomplished level of integration.’139 This confirms that the ECJ does not extend the essentially rights-based approach towards Union citizenship to third-country nationals (see above MN 43); with regard to immigration policy, a broader understanding of migrant perspective prevails.140

5. Abuse The term ‘abuse’ is used frequently in political debates about migration, usually by 48 those arguing for more restrictive legislation or more rigorous enforcement practices. 133 Cf. Joppke, Citizenship and Immigration (Polity Press, 2010), ch. 4; Orgad, ‘“Cultural Defense” of Nations’, ELJ 15 (2009), 719–737; and Thym, ‘Citizens and Foreigners in EU Law’, ELJ 22 (2016), sect. V.2 (forthcoming). 134 Cf. ECJ, Parliament vs. Council, C-540/03, EU:C:2006:429, paras 67–70; ECJ, Dogan, C-138/13, EU:C:2014:2066, para 58; and ECJ, Noorzia, C-338/13, EU:C:2014:2092, paras 14–16. 135 ECtHR, judgment of 18 October 2006 (GC), No. 46410/99, U ¨ ner v. the Netherlands, para 58; see also ECtHR, judgment of 23 June 2008 (GC), No. 1638/03, Maslov v. Austria, para 71. 136 See Thym, Residence as de facto Citizenship?, p. 138–143; and Murphy, ‘The Concept of Integration in the Jurisprudence of the European Court of Human Rights’, EJML 12 (2010), p. 23, 27–31. 137 See ECJ, Parliament vs. Council, C-540/03, EU:C:2006:429, para 70. 138 ECJ, P & S, C-579/13, EU:C:2015:369, para 47 for Directive 2003/109/EC in striking contrast to the position of AG Szpunar, P & S, C-579/13, EU:C:2015:39, paras 89–95 (the ECJ does not discuss the divergence explicitly); similarly for Directive 2003/86/EC, see ECJ, K & A, C-153/14, EU:C:2015:453, para 53 in line with AG Kokott, K & A, C-153/14, EU:C:2015:186, paras 33–47. 139 ECJ, Demirci u. a., C-171/13, EU:C:2015:8, para 54. 140 For further comments, see Thym, ‘Towards a Contextual Conception of Social Integration’, EJML 18 (2016), forthcoming.

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Migrants are said, for instance, to ‘abuse’ immigration law when they apply for social benefits; similarly, asylum claims by those without much likelihood of being awarded international protection are described as ‘abusive.’ It should be noted that, from a legal perspective, the concept of abuse has a more specific meaning in the EU context. It does not apply to those applying for benefits or an immigration status without success if their application can be rejected by immigration authorities on the basis of statutory rules.141 In contrast to frequent political usage, the legal concept of abuse does not concern unsuccessful claims. It rather has a more defined and narrower field of application in EU law, also beyond the sphere of immigration and asylum. 49 In contrast to the political usage of the term, the ECJ employs the concept of abuse in scenarios in which state authorities would be required, on the basis of a literal understanding of statutory rules, to comply with a request by individuals. As a legal argument, abuse becomes relevant when authorities want to reject an application they would otherwise have to consent to. In such scenarios, the ECJ nevertheless allows for a rejection if state authorities can show that the application was abusive. This conclusion ‘requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the European Union rules, the purpose of those rules has not been achieved, and, secondly, a subjective element consisting in the intention to obtain an advantage from the European Union rules by artificially creating the conditions laid down for obtaining it.’142 Abuse in this sense cannot be relied upon in an abstract manner with regard to a large number of cases, but must be based on an individual examination of the particular case.143

IV. Human Rights and International Law EU immigration and asylum law is firmly embedded in the constitutional framework of the EU Treaties, including human rights. From a doctrinal perspective, the rights and principles enshrined in the Charter of Fundamental Rights serve as the primary yardstick for the judicial review of EU legislation, both in situations where its validity is at stake or where it is interpreted in conformity with human rights. While the EU institutions must respect the Charter in all their activities, the Member States are bound only when implementing Union law (see Hailbronner/Thym, Constitutional Framework, MN 47–48). In specific scenarios, the interpretation of the EU Charter by the ECJ typically follows the case law of the ECtHR on the ECHR, although the ECJ is not formally obliged to follow the Strasbourg court (see ibid., MN 51). In contrast to international human rights law and the Geneva Convention, international agreements of the Member States to which the EU has not formally acceded do not form part of the EU legal order as a matter of principle (see ibid., MN 58–59). On the basis of these general principles, this section concentrates on the human rights dimension of EU instruments on immigration discussed in this chapter. 51 In comparison to asylum policy, there are few human rights constraints for statutory rules on legal migration: first entry for purposes of legal migration is an area of largely unfettered state discretion (see Thym, Legal Framework for Entry and Border Controls, 50

141

It is not problematic per se if the political and the legal usage of a term does not coincide. ECJ, O. & B., C-456/12, EU:C:2014:135, para 58 in a case concerning Union citizenship under recourse to earlier judgment without a migratory component; for further comments, see Costello, ‘Citizenship of the Union: Above Abuse?’, in: de la Feria/Vogenauer (eds), Prohibition of Abuse of Law (Hart, 2011), p. 321–354. 143 See ECJ, McCarthy u. a., C-202/13, EU:C:2014:2450, paras 52–57 in a case concerning Article 35 Citizenship Directive 2004/38/EC. 142

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MN 32–34). While Article 8 ECHR exercises some constraints (see below MN 52–56), Article 15(3) of the Charter indirectly reaffirms that access to the labour market is not significantly affected by the human rights in the EU Charter as long as equal working conditions are guaranteed only to those ‘who are authorised to work’ (see above MN 34). This underscores that in the field of legal migration those residing in Europe can invoke more rights: Article 8 ECHR lays down hurdles for the justification of expulsion measures (see below MN 53–55), and equal treatment guarantees can be relied on during periods of legal residence in particular (see above MN 37–42); civil rights, such as freedom of expression, are typically available to everybody anyway. Moreover, the social rights and principles in Title IV of the Charter can influence the status of migrants during a stay in the European Union, even if the precise implications of the social rights and principles remain uncertain at this juncture for doctrinal reasons (see Hailbronner/Thym, Constitutional Framework, MN 50).

1. Protection of Private and Family Life Article 8 ECHR, which corresponds to Article 7 of the Charter,144 is the core human 52 rights guarantee affecting EU immigration policy. In line with established ECtHR case law, we should distinguish between the denial of admission for purposes of family reunion and the expulsion of those claiming legitimate links with family members or to the societies they are living in. In so far as admission for purposes of family reunion is concerned, the ECtHR relies upon the doctrine of positive obligations to request state action in support of the individual.145 More specifically, Article 8 ECHR may oblige states in exceptional circumstances to grant permission for cross-border family reunion on their territory, thereby effectively extending to the family member residing abroad a human right to be granted access (in contrast to situations of expulsion regarding those living in Europe already, see below MN 53–55). It is cogent that the Court has been reluctant to deduce admission rights from Article 8 ECHR. Most claims in this category have been dismissed in Strasbourg, since the Convention ‘cannot be considered as extending to a general obligation … to respect the choice by married couples of the country of their matrimonial residence.’146 To this date, only three applications claiming admission for purposes of family reunion, which had not been resolved domestically on the basis of national rules or the Family Reunification Directive 2003/ 86/EC,147 have been successful.148 In the context of first admission, judges in Strasbourg have confirmed, among other 53 things, that children cannot necessarily claim family unity with parents under recourse to Article 8 ECHR despite their best interests being paramount in the assessment of immigration cases involving children.149 The same applies to situations of expulsion, 144

On parallel interpretation, see ECJ, McB., C-400/10 PPU, EU:C:2010:582, para 53. Cf. Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Hart, 2004), p. 171–176, although the ECtHR is not always consistent in distinguishing between negative interferences and positive obligations. 146 ECtHR, judgment of 28 May 1985, Nos. 9214/80, 9473/81 & 9474/81, Abdulaziz, Cabakes & Balkandali v. the United Kingdom, para 68 and, more recently, ECtHR, judgment of 31 January 2006, No. 50435/99, Rodrigues da Silva & Hoogkamer v. the Netherlands, para 39. 147 Most claims for family reunion with reasonable grounds for success will never reach the ECtHR, since national immigration laws provide statutory family reunification rights in accordance with Article 3 Family Reunification Directive 2003/86/EC or more generous national laws. 148 See ECtHR, judgment of 21 December 2000, No 31465/96, Sen v. the Netherlands; ECtHR, judgment of 1 December 2005, No. 60665/00, Tuquabo-Tekle et al v. Netherlands; and, in a specific scenarios involving earlier stays in the host country, ECtHR, judgment of 14 June 2011, No. 38058/09, Osman v. Denmark; for an overview of the case law, see Boeles et al., European Migration Law, p. 223–229. 149 Reaffirmed by ECtHR, judgment of 30 July 2013, Nr. 948/12, Berisha v. Switzerland, para 51. 145

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when a mother or father is ordered to leave a country, while their children stay behind; the ECtHR emphasised in several recent decisions that expulsion can be proportionate even if it entails the permanent separation of parents and minor children.150 Article 24 of the EU Charter and the Convention on the Rights of the Child, which the ECJ considers a source of inspiration for EU human rights (see Hailbronner/Thym, Constitutional Framework, MN 54), do not seem to change the situation significantly, since their contents has effectively been integrated into the interpretation of Article 8 ECHR by the judges in Strasbourg.151 54 Protection against expulsion of foreigners residing in the European Union continues to be the backbone of the ECtHR’s immigration case law, although the ECtHR had maintained that the Convention did not regulate the entry and stay of foreigners for the first three decades of its existence. It took until 1988 for the first expulsion of an alien to be declared incompatible with Article 8 ECHR.152 Since then the ECtHR has played a crucial role in providing a human rights safety net against the expulsion of migrants who have, in many cases, spent their entire lives in Europe as the children of former ‘guest workers.’ Although residence security has been a driving force behind the case law from the beginning, it was constructed as a means for the protection of family life, i. e. ties to parents, siblings and other members of the nuclear family.153 The ECtHR developed a set of criteria guiding the proportionality assessment and requires states to strike a fair balance on the basis of the following considerations: length of the stay; solidity of social, cultural and family ties with the country of residence and origin; age, best interests and well-being of children; nature and seriousness of potential criminal offences; time elapsed since an offence and the conduct during that period; the applicant’s family situation and the nationalities of the persons concerned; whether spouses knew about the offence or an unstable immigration status when they entered into the relationship; and any difficulties which the spouse is likely to encounter in the country of origin.154 If a foreigner was born in the host country or moved there in his young childhood, the Court limits its assessment to three criteria, thereby effectively extending the degree of protection.155 In assessing specific scenarios, the Member States benefit from a certain margin of appreciation. 150 Cf., by way of example, ECtHR, ibid.; ECtHR, judgment of 14 Feb 2012, No. 26940/10, Antwi et al. v. Norway, paras 94 et seq.; ECtHR, judgment of 15 November 2012, No. 38005/07, Kissiwa Koffi v. Switzerland; ECtHR, judgment of 15 May 2012, No. 16567/10, Nacic et al. v. Sweden; by contrast, a violation of Article 8 ECHR was found, inter alia, by ECtHR, judgment of 16 April 2013, No. 12020/09, Udeh v. Switzerland. 151 Cf. ECtHR, judgment of 28 June 2011, No. 55597/09, Nunez v. Norway, para 84; and Gundel, ‘Der wachsende Einfluss des EU-Rechts auf die Auslegung der EMRK’, in: Mu¨ller-Graff et al. (eds), Europa¨isches Recht zwischen Bewa¨hrung und Bewahrung (Nomos, 2011), p. 58, 74–77. 152 See ECtHR, judgment of 21 June 1988, No. 10730/84, Berrehab v. the Netherlands. 153 For an overview incl. of the narrow reading of the concept of family involving only members of the ‘nuclear family’ in regular circumstances, see Thym, Residence as de facto Citizenship?, p. 107–130; and Boeles et al., European Migration Law, p. 202–222; for the broader conceptualisation of family life outside Europe, see Lambert, ‘Family Unity in Migration Law’, in: Chetail/Baulez (eds), Research Handbook on International Law and Migration (Elgar, 2014), p. 194, 200–204. 154 Settled case law since ECtHR, judgment of 2 August 2001, No. 54273/00, Boultif v. Switzerland, ¨ ner v. the Netherlands, para 48 with ECtHR, judgment of 18 October 2006 (GC), No. 46410/99, U paras 57–58 and ECtHR, Nunez, ibid., para 84 specifying the best interests of children and the solidity of family ties as sub-criteria; ECtHR, judgment of 23 June 2008 (GC), No. 1638/03, Maslov v. Austria, para 71 added the solidity of social, cultural and family ties with the host country and the country of origin. 155 ECtHR, judgment of 10 July 2003, No. 53441/99, Benhebba v. France, para 33 and ECtHR, Maslov, ibid., para 71 highlight the following criteria in these scenarios: nature and seriousness of potential criminal offences; length of the stay; and nationalities of persons involved.

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In recent years, the ECtHR has further extended the protective reach of Article 8 55 ECHR by embracing the protection of long-term residence status under the heading of ‘private life’ irrespective of relations with family members.156 It assumed that ‘the network of personal, social and economic relations that make up the private life of every human being’157 can be protected under Article 8 ECHR as a matter of principle and that, as a result, interferences by means of expulsion require a justification alongside a proportionality assessment, which is to be guided by similar principles as in cases involving family unity (see above MN 54).158 Protection of private life can bring about a human right to regularise illegal stay, although the ECtHR has emphasised repeatedly in recent years that the removal of illegally staying foreigners will violate the European Convention ‘only in exceptional circumstances.’159 It has also reaffirmed that even foreigners who have been living in the country of residence since early childhood are not immune from deportation;160 only naturalisation brings about an absolute protection against expulsion for settled migrants.161 Article 8 ECHR can be relied upon to challenge the validity of EU legislation or 56 national implementing measures (see Hailbronner/Thym, Constitutional Framework, MN 47–48). For a simple reason such challenges have so far rarely been successful in practice: rules in secondary EU legislation often lay down more extensive guarantees than the minimum threshold for the protection of family and private life under Article 8 ECHR – as the ECJ recognised explicitly on the occasion of its first judgment on the Family Reunification Directive 2003/86/EC (see Hailbronner/Thym, ibid., MN 15). Settled ECtHR case law can provide useful guidance, nonetheless, on the interpretation of more specific guarantees, such as the limits to linguistic integration requirements for spouses under the Family Reunification Directive (see Klarmann/Hailbronner, Directive 2003/86/ EC Article 7 MN 40–46) or the conditions for the expulsion in the Long-Term Residents Directive (see Thym, Directive 2003/109/EC Article 12 MN 9–10).

2. International Agreements In contrast to Article 78(1) TFEU on asylum, the Treaty base for immigration law 57 does not specify that policy instruments must be compatible with international treaties (cf. Hailbronner/Thym, Legal Framework for Asylum Policy, MN 8–11), thereby reflecting the absence of any far-reaching obligations apart from the ECHR which the EU is bound to respect via parallel interpretation of the EU Charter (see above MN 51). The abstinence from an explicit deference to international law does not prevent judges, however, from reviewing EU legislation in the light of international law whenever general constitutional considerations render international legal standards directly applicable within the EU legal order. It has been explained elsewhere that, on this basis, most international human rights instruments such as the ICCPR or the European Social Charter can be invoked, while the UN Convention on Migrant Workers and 156 On the original twist in the case law, see Thym, ‘Respect for Private and Family Life under Article 8 ECHR in Immigration Cases’, ICLQ 57 (2008), 87, 95–102. 157 ECtHR, judgment of 9 October 2003 (GC), No. 48321/99, Slivenko et al. v. Latvia, para 97. 158 When migrants do not have a nuclear family, the criteria concerning family unity are irrelevant, while the other criteria listed above, such as the solidity of social and cultural ties, have a comparatively higher weight; cf. Thym, Residence as de facto Citizenship?, p. 113–117, 125–126. 159 ECtHR, judgment of 28 June 2011, No. 55597/09, Nunez v. Norway, para 83; for further comments, see Thym, Residence as de facto Citizenship?, p. 117–120. 160 See, by way of example, ECtHR, judgment of 20 December 2011, 6222/10, A.H. Khan v. the United Kingdom; and ECtHR, judgment of 10 April 2012, No. 60286/09, Balogun v. the United Kingdom. 161 See ECtHR, judgment of 23 June 2008 (GC), No. 1638/03, Maslov v. Austria, para 74; and Thym, Residence as de facto Citizenship?, p. 138–143.

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some ILO conventions concerning migrant workers cannot be relied upon due to an insufficient number of ratifications by the Member States (see Hailbronner/Thym, Constitutional Framework, MN 55). In addition, several conventions concluded within the framework of the Council of Europe retain a certain relevance in relation to the nationals of selected third states to which the agreements continue to apply (see Hailbronner/Thym, Constitutional Framework, MN 59). 58 Before the adoption of secondary legislation on immigration, the EU (or its predecessor, the EEC) had concluded a number of association agreements with third states, among which the Ankara Agreement of 1963 with Turkey and related documents have gained considerable prominence as a result of dynamic ECJ case law approximating the status of Turkish nationals to that of Union citizens.162 Like other international treaties concluded by the EU, association agreements can be directly applicable in the EU legal order under the conditions stipulated by the ECJ (see Hailbronner/Thym, Constitutional Framework, MN 56–57). This outcome was no foregone conclusion, however, and followed the express desire of the negotiating partners to orientate themselves towards the rules on union citizens; there is no general interpretative standard prescribing parallel interpretation (see Hailbronner/Thym, ibid., MN 19). From the perspective of the EU Treaties, the legislature benefits from a principled discretion in deciding the contents of secondary legislation within the limits prescribed by human rights (see above MN 33). It can exercise this discretion autonomously or bilaterally through the conclusion of international agreements, the content of which is defined by the negotiating partners. In the cases of Turkey, Norway, Iceland, Lichtenstein, Switzerland and some corollary aspects of the agreements with Mediterranean countries,163 association agreements have had a tangible impact; in other scenarios, their significance remains limited to this date. 59 Inspection of the rules on migration in recent association agreements exposes a change of direction in the EU’s negotiating strategy. As a result, in part at least, of progressive ECJ case law, Member States insist on careful drafting of new agreements in order to minimise the potential for judicial innovation. Even agreements with future accession candidates nowadays contain only narrow and cautiously drafted rules on migrant workers.164 This new approach to association agreements reflects a change of perspective. Rules on workers no longer primarily follow the single-market paradigm, but mirror migration-related objectives of the area of freedom, security and justice, reflecting the emergence of migration law as a policy field in its own right.165 For countries without an accession perspective, rules on cross-border movements of workers have always been limited and have been absorbed, in recent years, by provisions focusing on migration control and social policy at home, for instance in negotiations with African states.166 As a result, the practical impact of more recent association agreements on EU immigration law and the corresponding room for manoeuvre of the Court of Justice have been considerably limited. 162 For an overview, see Boeles et al., European Migration Law, p. 97–116; and Tezcan-Idriz, ‘Free Movement of Persons between Turkey and the EU’, CML Rev. 46 (2009), p. 1621, 1625–1664. 163 For an overview of different agreements and their impact upon EU migration law, see the contributions to Thym/Zoeteweij Turhan (eds), Rights of Third-Country Nationals under EU Association Agreements (Martinus Nijhoff, 2015). 164 See the Stabilisation and Association Agreements (SAAs) with the countries of the Western Balkans, e. g. Articles 49–58 of the SAA with Serbia of 29 April 2008 (OJ 2013 L 278/16). 165 See Thym, ‘Constitutional Foundations of the Judgments on the EEC-Turkey Association Agreement’, in: Thym/Zoeteweij Turhan (eds), ibid., p. 13, 33–34. 166 See Devisscher, ‘Legal Migration in the Relationship between the European Union and ACP Countries’, EJML 13 (2011), p. 53, 81–93.

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Rules on migration in association agreements concluded by the EU are complemen- 60 ted by so-called ‘mobility partnerships’ that have been agreed with several third countries, such as Georgia and Morocco, as laboratories for future cooperation, including potential routes for legal migration (although few opportunities have surfaced so far).167 From a legal perspective, the mobility partnerships are, as soft law instruments, deliberately loosely knit and shy away from firm legal commitments.168 That said, the EU institutions seem determined to follow down this road and to promote further cooperation on the basis of mobility partnerships. They are often combined with the conclusion of legally binding readmission agreements facilitating the return of illegal migrants (see above MN 22–23), which third states have often only been willing to sign up to in conjunction with parallel negotiations on visas facilitation agreements (see Thym, Legal Framework for Entry and Border Controls, MN 14) providing for visa free access in return for enhanced migration control measures.169 The dependence of successful negotiations on mutually beneficial outcomes illustrates the general point: the content and reach of association agreements and related bilateral treaties depend on the outcome of diplomatic negotiations. 167 See Thym, International Migration Governance, p. 293–301, including on the underlying concerns, on the side of the Member States, that routes for legal migration should be determined through national concessions within the overall framework of mobility partnerships. 168 See Thym, ibid., p. 300–301; and Lavenex/Nellen-Stucky, ‘“Partnering” for Migration in EU External Relations’, in: Kunz/Lavenex/Panizzon (eds), Multilayered Migration Governance (Routledge, 2011), p. 116–142. 169 See Thym, ibid., p. 293–298, 303–304; Gromovs, ‘EU Visa Facilitation Agreements and Readmission Agreement’, in: Maes et al. (eds), External Dimensions of EU Migration and Asylum Law and Policy (Bruylant, 2011), p. 221–249; and Coleman, Readmission Policy.

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II. Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification Official Journal L 251, 03/10/2003, p. 12–18 Selected Bibliography: Boeles/den Heijer/Lodder/Wouters, European Migration Law (Intersentia, 2009); Block/Bonjour, ‘Fortress Europe or Europe of Rights? The Europeanisation of Family Migration Policies in France, Germany and the Netherlands’, EJML 12 (2013), p. 203–224; Bonjour, ‘Between Integration Provision and Selection Mechanism. Party Politics, Judicial Constraints, and the Making of French and Dutch Policies of Civic Integration Abroad’, EJML 12 (2012), p. 299–318; Brinkmann, ‘The Transposition of the Family Reunification Directive in Germany’, in: Bo¨cker/Havinga et al. (eds), Migration Law and Sociology of Law (Wolf Legal Publishers, 2008), p. 35–41; Dienelt, Auswirkungen der Familienzusammen¨ nderungsgesetzes (e-book, 2006); Ecker, fu¨hrungsrichtlinie auf das AufenthG unter Beru¨cksichtigung des 2. A ¨ sterreich, 2008); European Migration Network, Synthesis Report on Family Familienzusammenfu¨hrung (O Reunification (European Commission, 2006); Grabenwarter, Christoph, European Convention on Human Rights. Commentary (Beck, 2014); Groenendijk/Fernhout/van Dam/van Oers/Strik, The Family Reunification Directive in EU Member States; the First Year of Implementation (Wolf Legal Publishers, 2006), available at: http://cmr.jur.ru.nl/cmr/docs/family.rd.eu.pdf [last accessed 11 January 2015]; Groenendijk, ‘Family Reunification as a Right under Community Law’, EJML 8 (2006), p. 215–230; Groenendijk, ‘Predeparture Integration Strategies in the European Union: Integration or Immigration Policy?’, EJML 13 (2011), p. 1–30; Go¨bel-Zimmermann, ‘Verfassungswidrige Hu¨rden fu¨r den Ehegattennachzug nach dem Richtlinienumsetzungsgesetz’, Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik (2008), p. 169–176; Gue`vremont, Vers un traitement e´quitable des e´trangers extracommunautaires en se´jour re´gulier (Wo¨hrmann Printing Service, 2009); Hailbronner, ‘Die Neuregelung des Ehrgattennachzugs in Kreuzfeuer des Verfassungs- und Europarechts’, Zeitschrift fu¨r das Gesamte Familienrecht (2008), p. 1583–1589; Hailbronner, ‘Die Richtlinie zur Familienzusammenfu¨hrung’, Zeitschrift fu¨r das Gesamte Familienrecht (2005), p. 1–8; Hauschild, ‘Neues europa¨isches Einwanderungsrecht: Das Recht auf Familienzusammenfu¨hrung’, Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik (2003), p. 266–273; Labayle/Pascouau, Directive 2003/ 86/EC on the Right to Family Reunification Synthesis Report (Odysseus Network, 2008, available at http:// ec.europa.eu/dgs/home-affairs/e-library/documents/policies/immigration/pdf/general/odysseus_2003_86_family_reunification_synthesis_en.pdf [last accessed 11 January 2015]; Langenfeld/Mohsen, ‘Die neue EGRichtlinie zum Familiennachzug und ihre Einordnung in das Vo¨lkerrecht’, Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik 2003, p. 398–404; Markard/Truchseß, Neue Zeitschrift fu¨r Verwaltungsrecht (2007), p. 1025–1028; Michalowski/Walter, ‘Family Reunification between EC Law and National Integration Policy’, in: Bo¨cker/Havinga et al. (eds), Migration Law and Sociology of Law (Wolf Legal Publishers, 2008), p. 103–120; Oosterom-Staples, ‘The Family Reunification Directive: A Tool Preserving Member State Interest or Conducive to Family Unity?’, in: Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice? (Hart, 2007), p. 451–488; Peers, EU Justice and Home Affairs Law, 3rd Edition (OUP, 2011); Peers, ‘Legislative Update: EC Immigration and Asylum Law Attracting and Deterring Labour Migration: The Blue Card and Employer Sanctions Directives’, EJML 11 (2009), p. 387–426; Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law (Text and Commentary), 2nd Edition (Brill Nijhoff, 2012); Staiano, ‘Good Mothers, Bad Mothers: Transnational Mothering in the European Court of Human Rights’ Case law’, EJML 15 (2013), p. 155–182; Thym, ‘Sprachkenntnisse und Ehegattennachzug: Bewegung beim Stillstand fu¨r tu¨rkische Staatsangeho¨rige’, Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik 9 (2014), p. 301–306; Walter, Familienzusammenfu¨hrung in Europa (Nomos, 2009); Wiesbrock, Legal migration to the EU (Brill Nijhoff, 2010); Weichselbaum, ‘Hochsaison fu¨r den Familiennachzug?’, juridikum (2004), p. 24–28; Wray/Agoston/Hutton, ‘A Family Resemblance? The Regulation of Marriage Migration in Europe’, EJML 16 (2014), p. 209–247.

THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 63(3)(a) thereof, Having regard to the proposal from the Commission(1), (1)

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Having regard to the opinion of the European Parliament(2), Having regard to the opinion of the European Economic and Social Committee(3), Having regard to the opinion of the Committee of the Regions(4), Whereas: (1) With a view to the progressive establishment of an area of freedom, security and justice, the Treaty establishing the European Community provides both for the adoption of measures aimed at ensuring the free movement of persons, in conjunction with flanking measures relating to external border controls, asylum and immigration, and for the adoption of measures relating to asylum, immigration and safeguarding the rights of third country nationals. (2) Measures concerning family reunification should be adopted in conformity with the obligation to protect the family and respect family life enshrined in many instruments of international law. This Directive respects the fundamental rights and observes the principles recognised in particular in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the Charter of Fundamental Rights of the European Union. (3) The European Council, at its special meeting in Tampere on 15 and 16 October 1999, acknowledged the need for harmonisation of national legislation on the conditions for admission and residence of third country nationals. In this context, it has in particular stated that the European Union should ensure fair treatment of third country nationals residing lawfully on the territory of the Member States and that a more vigorous integration policy should aim at granting them rights and obligations comparable to those of citizens of the European Union. The European Council accordingly asked the Council rapidly to adopt the legal instruments on the basis of Commission proposals. The need for achieving the objectives defined at Tampere have been reaffirmed by the Laeken European Council on 14 and 15 December 2001. (4) Family reunification is a necessary way of making family life possible. It helps to create sociocultural stability facilitating the integration of third country nationals in the Member State, which also serves to promote economic and social cohesion, a fundamental Community objective stated in the Treaty. (5) Member States should give effect to the provisions of this Directive without discrimination on the basis of sex, race, colour, ethnic or social origin, genetic characteristics, language, religion or beliefs, political or other opinions, membership of a national minority, fortune, birth, disabilities, age or sexual orientation. (6) To protect the family and establish or preserve family life, the material conditions for exercising the right to family reunification should be determined on the basis of common criteria. (7) Member States should be able to apply this Directive also when the family enters together. (8) Special attention should be paid to the situation of refugees on account of the reasons which obliged them to flee their country and prevent them from leading a normal family life there. More favourable conditions should therefore be laid down for the exercise of their right to family reunification. (9) Family reunification should apply in any case to members of the nuclear family, that is to say the spouse and the minor children. (10) It is for the Member States to decide whether they wish to authorise family reunification for relatives in the direct ascending line, adult unmarried children, (2)

OJ C 135, 7.5.2001, p. 174. OJ C 204, 18.7.2000, p. 40. (4) OJ C 73, 26.3.2003, p. 16. (3)

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Part C II

Immigration

unmarried or registered partners as well as, in the event of a polygamous marriage, minor children of a further spouse and the sponsor. Where a Member State authorises family reunification of these persons, this is without prejudice of the possibility, for Member States which do not recognise the existence of family ties in the cases covered by this provision, of not granting to the said persons the treatment of family members with regard to the right to reside in another Member State, as defined by the relevant EC legislation. (11) 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. (12) The possibility of limiting the right to family reunification of children over the age of 12, whose primary residence is not with the sponsor, 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. (13) A set of rules governing the procedure for examination of applications for family reunification and for entry and residence of family members should be laid down. Those procedures should be effective and manageable, taking account of the normal workload of the Member States’ administrations, as well as transparent and fair, in order to offer appropriate legal certainty to those concerned. (14) Family reunification may be refused on duly justified grounds. In particular, the person who wishes to be granted family reunification should not constitute a threat to public policy or public security. The notion of public policy may cover a conviction for committing a serious crime. In this context it has to be noted that the notion of public policy and public security covers also cases in which a third country national belongs to an association which supports terrorism, supports such an association or has extremist aspirations. (15) The integration of family members should be promoted. For that purpose, they should be granted a status independent of that of the sponsor, in particular in cases of breakup of marriages and partnerships, and access to education, employment and vocational training on the same terms as the person with whom they are reunited, under the relevant conditions. (16) Since the objectives of the proposed action, namely the establishment of a right to family reunification for third country nationals to be exercised in accordance with common rules, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the action, be better achieved by the Community, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives. (17) In accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community and without prejudice to Article 4 of the said Protocol these Member States are not participating in the adoption of this Directive and are not bound by or subject to its application. (18) In accordance with Article 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and the Treaty establishing the European Community, Denmark does not take part in the adoption of this Directive, and is not bound by it or subject to its application, 302

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Art. 1

Part C II

HAS ADOPTED THIS DIRECTIVE:

CHAPTER I General provisions Article 1 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 I. II. III. IV. V.

General remarks on Article 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Drafting history of the Directive and of Article 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Structure of the Directive. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Protection of family life under human rights law . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 The right to family reunification under the Directive. . . . . . . . . . . . . . . . . . . . . . . 26

I. General remarks on Article 1 Article 1 of Council Directive 2003/86/EC of 22 September 2003 on the Right to 1 Family Reunification (hereinafter: the Directive) establishes the purpose of the Directive.1 Unlike other Directives,2 Article 1 of Directive 2003/86/EC3 is not a simple 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 Council Directive 2003/86/EC on the Right to Family Reunification was adopted by 2 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 1

Oosterom-Staples, in: Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice?, p. 451. See Article 1 of the Asylum Reception Directive 2013/32/EU and Article 1 of the Asylum Qualification Directive 2011/95/EU. 3 Subsequent Articles without further reference are those of Directive 2003/86/EC. 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. 5 Handoll, Free Movement of Persons in the EU: Towards European Citizenship (Wiley, 1995), p. 361, MN 11.67. 6 Peers/Guild et al, EU Immigration Law, p. 573, 577. 2

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Immigration

In June 1993, the Ministers adopted a Resolution on the harmonisation of national policies on family reunification (hereinafter: Resolution).7 The Resolution being an instrument of ‘soft law’ 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 on a basis offering the expectation of permanent or long-term residence (Principle1 of the Resolution). It did not apply to EU citizens and their family members. In contrast to Directive 2003/86/EC the Resolution did not apply to EU citizens and recognised refugees. However, some of the principles made their way to the final Directive. Similar to Directive 2003/86/EC eligible family members, i. e. family members that Member States ‘will normally grant admission’ were the spouse and minor children below 16 to 18, according to the Member States’ specifications (Principle 8 of the Resolution). Like in the Directive, a number of conditions, including an undefined waiting period (‘certain period of time’), public policy exceptions, and economic requirements were included. 4 The Amsterdam Treaty of 19978 transferred competences in the field of immigration and asylum to the European Community. 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. 3(a) TEC and the words ‘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, the competence for the regulation of family reunification was not limited to harmonising at the level of minimum standards.10 5 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 includes 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. 6 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 the Tampere meeting, on 1 December 1999, the 3

7 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. 8 Treaty of Amsterdam, OJ 1997 C 340/1, signed on 2.10.1997, entry into force on 1.5.1999. 9 Emphasis added. 10 See Article 63 (1) no. 1(b)–(d) TEC. 11 Tampere European Council, Conclusion of the Presidency no. 18, available at: http://www.europarl.europa.eu/summits/tam_de.htm [last accessed 19 February 2015]. 12 Tampere European Council, Conclusion of the Presidency no. 18, available at: http://www.europarl.europa.eu/summits/tam_de.htm [last accessed 19 February 2015].

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Part C II

Commission presented a first proposal on a directive on family reunification (hereinafter: the first or initial proposal).13 As the Commission then explained, 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.14 Recital 3 of the Directive still refers to the goals of Tampere. The legislative process of the Directive turned out to be difficult. The Economic and 7 Social Committee15 and the Committee of the Regions16 were consulted. The European Parliament, upon its consultation, 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 8 European Commission presented a second, modified proposal (hereinafter: the second proposal),19 which took up most of the European Parliament’s suggestions, such as the exclusion of persons enjoying 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 In response to the Council’s request, the Commission adopted a third proposal on 9 2 May 2002 (hereinafter: the third proposal).26 The third proposal included considerable amendments. It was much less ambitious concerning the amount of harmonisation than 13 Commission Proposal, COM(1999) 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(1999) 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 10.2.2000, to consult the Committee according to Article 262(1) TEC in regard to the first proposal for a Directive, (COM (2002) 225). 16 Opinion of the Committee of 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). 18 Oosterom-Staples, in: Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice?, p. 451, 455. 19 Commission Proposal, COM(2000) 624 final; see Cholewinski, EJML 2002, p. 271. 20 See Commission Proposal, COM(2000) 624 final, Explanatory Memorandum, p. 2; see in detail: Oosterom-Staples, in: Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice?, 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. 22 Commission Proposal, COM(2000) 624 final, Explanatory Memorandum on amendment 9, p. 4. 23 Hereinafter in this chapter ‘Member States’ means the Member States bound by the Directive. 24 Laeken European Council, Conclusion of the Presidency no. 40, point 3. 25 Ibid., Conclusion of the Presidency no. 41. The Council also requested the submission of amended proposals concerning asylum procedures and the Dublin II Regulation. 26 Commission Proposal, COM(2002) 225 final.

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the previous two proposals. Provisions allowing for derogation27 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 To support this critique, reference is made to Article 3(4) and (5) of the Directive which enable the Member States enact more favourable provisions, which show that a higher level of protection in national legislation is possible.33 Those provisions were indeed introduced to compensate for the deletion of several more favourable provisions in the course of the negotiations.34 11 The Directive had to be transposed into national law by the Member States – except for 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 by then 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 27 Schaffrin, in Carlier/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. 28 ‘Optional clauses’ can be defined as clauses which allow Member States to go beyond the standards set out in the Directive, Schaffrin, in Carlier/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.’ 30 Commission Proposal, COM(2002) 225 final, Article 4(1)(c) and Article 8(2). 31 Note of the General Secretariat of the Council to the Delegations, Council doc. 6912/03 of 28 February 2003. 32 Cholewinski, ‘Family Reunification and Conditions Placed on Family Members: Dismantling a Fundamental Human Right’, EJML 4 2002, p. 271, 279 et seq; Oosterom-Staples, in: Baldaccini/Guild/ Toner (eds), Whose Freedom, Security and Justice?, p. 451. 33 Oosterom-Staples, in: Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice?, p. 451. 34 Commission Proposal, COM(2002) 225 final, p. 6. 35 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=MEMO/05/348&format=HTML&aged=1&language=EN&guiLanguage=en [last accessed 25 February 2015]. 37 Commission Report, COM(2008) 610 final. 38 Commission Report, COM(2008) 610 final, p. 14. 39 Ibid, p. 14.

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family reunification, taking into account the importance of integration measures’.40 Furthermore, some countries called for a modification of the Directive in order to further restrict family reunification and tackle potential abuse.41 In reaction to these deficits, the Commission issued a Green Paper in 201142 which initiated a broad public consultation on the future of the right to family reunification.43 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.44 In reaction to this, the Commission issued guidance for application of the Directive in April 2014,45 which aims at ensuring a more coherent application by providing guidance to MSs on how to apply the Directive. This guidance for application is non-binding, but can be considered as guidance in the interpretation of the Directive. The ECJ has decided a number of cases concerning the Directive.46 One case relevant 12 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.47 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 reunification in the Directive, were inconsistent with ‘fundamental rights, including the right to family life and the right not to be discriminated against […].’48 Whereas Advocate General Kokott49 had found Article 8 of the Directive to be incompatible with human rights, the ECJ dismissed the entire application on 27 June 2006.50 It emphasised that Article 8 ECHR and other instruments of international law, such as the Convention on the Rights of the Child51 and Article 7 of the EU Charter of Fundamental Rights52 do not grant a right to enter and reside in a particular country for the purpose of family reunification.53 The ECJ stressed that States enjoy a ‘margin of appreciation’ when they examine applications for family reunification54 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.55 This may result in a positive obligation to grant entry to a person. 40

Commission Communication, COM(2009) 262/4, p. 30, the so-called ‘Stockholm Program’. Position paper – the Dutch standpoint on EU migration policy, available at http://www.rijksoverheid.nl/documenten-en-publicaties, [last accessed 17 February 2015]. 42 Commission Green Paper, COM(2011) 735 final. 43 Commission Report, Summary of Stakeholder Responses to the Green Paper on the right to family reunification, 11 May 2012; all consultation documents available at http://ec.europa.eu/dgs/home-affairs/ what-is-new/public-consultation/2012/consulting_0023_en.htm [last accessed 17 February 2015]. 44 Commission Communication, COM(2014) 210 final, p. 2. 45 Ibid. 46 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: Neuhold/Vanhoonacker (eds), Dynamics of institutional cooperation in the European Union: Dimensions and effects (European Integration online Papers (EIoP), 2015), Special issue 1, Vol. 19, Article 6. 47 ECJ, Parliament v Council, C-540/03, EU:C:2006:429. 48 ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 30. 49 AG Kokott, Parliament v Council, C-540/03, EU:C:2005:517. 50 ECJ, Parliament v Council, C-540/03, EU:C:2006:429. 51 Ibid, para 57. 52 Ibid, para 58. 53 Ibid, para 59. 54 Ibid, para 62. 55 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 Reunifica41

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According to the Court, the Directive, by actually granting a right to family reunification in Article 4(1), goes beyond previously existing fundamental rights.56 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 safeguard sufficiently that in each case the relevant competing interests are weighed. 13 A second case brought before the ECJ by the Dutch court Raad van Staate which lodged a reference to the ECJ on 29 December 2008, asking for a preliminary ruling on two questions in regard to the resources requirement stipulated under Article 7(1)(c) and the definition of ‘family’ under Article 2(d).57 The ECJ delivered its first judgment on national law transposing the Directive on 4 March 2010 (see in detail below Article 2, MN 17 and Article 7, MN 18 et seqq).58 Besides elaborating on the resources requirement of Article 7(1)(c), the Court stated 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’59 which frames the interpretation of the entire Directive and allegedly influences the test of proportionality of restrictive national measures,60 which must be interpreted restrictively.61 In the following years the ECJ elaborated further on the requirements stipulated by Article 7 in Imran62 and Dogan63 (integration requirement according to Article 7(2), see in detail below Article 7, MN 39) and in O. and S.64 (resources requirement according to Article 7 (1)(c)), see in detail below Article 7, MN 15). More recently, the ECJ restricted the possibility for Member States to demand fees for language tests in K&A65 (see in detail below Article 7, MN 30). Furthermore, the Court dealt with the non-application to Union Citizens in Ymeraga66 (see in detail below Article 3, MN 14) and the optional minimum age for the sponsor and/or the spouse according to Article 4(5) in Noorzia67 (see in detail below Article 4, MN 50). 14 The drafting history of Article 1 reveals some moderate changes. The wording was changed from ‘to establish a right to family reunification’ (first and second proposal)68 to ‘to determine the conditions in which the right to family reunification may be exercised’ (third proposal)69 and ‘to determine the conditions for the exercise of the right to family reunification’70 (Article 1 of the Directive). Apart from minor language tion 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. 56 ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 60. 57 Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 29 December 2008, ECJ, Chakroun, C-578/08, EU:C:2010:117. 58 ECJ, Chakroun, C-578/08, EU:C:2010:117. 59 Ibid. para 43. 60 Hardy, ‘The Objective of Directive 2003/86 Is to Promote the Family Reunification of Third Country Nationals’, EJML 14 (2012), p. 439, 443. ‘The individual analysis has thus become a condition of substance, more than of procedure.’ (p. 444) 61 This follows directly from the Chakroun judgment, see Wiesbrock, ‘The Right to Family Reunification of Third-Country Nationals under EU Law’ (Case Note on Rhimou Chakroun), EuConst 6 (2010), p. 462, 474. 62 ECJ, Mohammad Imran, C-155/11, EU:C:2011:387. 63 ECJ, Dogan, C-138/13, EU:C:2014:2066. 64 ECJ, O. & S., joined Cases C-356/11 and C-357/11, EU:C:2012:776. 65 ECJ, K and A, C-153/14 (OJ 2014 C 194/14). 66 ECJ, Ymeraga, C-87/12, EU:C:2013:291. 67 ECJ, Noorzia, C-388/13, EU:C:2014:2092. 68 Commission Proposal, COM(1999) 638 final, Article 1 and Commission Proposal, COM(2000) 624 final, Article 1. 69 Commission Proposal, COM(2002) 225 final, Article 1, emphasis added. 70 Emphasis added.

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revisions there was one other major amendment in Article 1: Whereas the first proposal included family reunification to citizens of the Union who do not exercise their right to free movement,71 this group is not covered by the Directive and therefore not mentioned in Article 1. Article 1 of the Directive thus reflects the limitation of the personal scope of application of the Directive as stipulated by Article 3(3) of the Directive. The Commission had originally suggested applying the Directive also to non-mobile Union citizens, who were not included in the proposal on the Free Movement Directive 2004/38/EC either. 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 which however to date has not yet been elaborated.72

III. Structure of the Directive The Directive contains 22 articles and is structured into eight chapters. Due to many 15 changes during the negotiation process the structure of the Directive is not entirely consistent concerning order and content. Chapters I 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, the Directive provides for the conditions of entry, stay and termination of stay of third-country nationals who are family members of thirdcountry national legal residents in the Member States. Chapters III (Article 5) and IV (Article 6) stipulate the conditions that have to 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 so as to take their particular situation into account. The idea to create a separate chapter for refugees was only realised in the third proposal. The first two proposals had specific provisions for refugees included into the relevant articles. The change of structure was not fully maintained, 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 2011/95/EU73 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 scope of both directives – 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. The most important rights are those for education, vocational guidance and employment.74 Chapter VII of the Directive (Articles 16–18) stipulates specific sanctions. The reasons for rejection, withdrawal or refusal to renew as stipulated by Article 17 of the Directive originate from the ECtHR’s case law on Article 8 ECHR.75 Article 18 of the Directive guarantees legal remedies. Chapter VIII (Articles 19–22) contains final provisions. 71

Commission Proposal, COM(1999) 638 final, Article 1. Commission Proposal, COM(2002) 225 final, p. 5. 73 OJ 2002 L 304/12. 74 Article 14(1) of the Family Reunification Directive 2003/86/EC. 75 Groenendijk, EJML 2006, p. 215, 219. 72

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IV. Protection of family life under human rights law More like any other directives, the interpretation and application of the Directive is influenced by the jurisprudence of the ECtHR, since the ECHR protects the right to family life in its Article 8 (for an overview see Thym, Legal Framework for EU Immigration Policy, MN 51 et seqq). Recital 2 demands 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. Thus, acts of the Union need to comply with these standards as well as the acts of the Member States when they implement Union law.76 The ECJ judged that it follows from this that ‘the provisions of the Directive … must be interpreted … in the light of the right to respect for family life enshrined in … the ECHR’.77 The content of Article 8 ECHR therefore significantly shapes the requirements of the Directive and its application. Article 8 ECHR provides for an individual ‘the right to respect for his private and family life’. Although the EU has not yet acceded to the ECHR, the first sentence of Article 6(2) TEU provides a legal basis and obligation for the EU to accede to the ECHR78 and a draft accession agreement between the Council of Europe’s Steering Committee for Human Rights and the EU has been signed that set the accession in motion in April 2013.79 However, this process was blocked by the ECJ80 (for more detail see Thym/Hailbronner, Introduction, MN 51). Even though the EU as such is not yet bound by the ECHR, to date all EU Member States are bound by the ECHR and the ECJ ‘draws inspiration’ from the constitutional traditions common to the Member States and from the guidelines supplied by international instruments for the protection of human rights.81 In that regard, it has repeatedly underlined the importance of the ECHR and has ruled that the respect for family life enshrined in Article 8 ECHR is a fundamental principle which has to be respected.82 Other human rights instruments which protect family life are first of all Article 7 of the EU Charter on Fundamental Rights and the UN 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).83 The obligations stemming from Article 8 ECHR are of paramount importance since they need to be respected by the Member States when they decide on entry, residence but also termination of residence of third-country nationals, also when implementing the Directive. 20 The ECtHR has repeatedly undertaken to define the term ‘family’ in Article 8 ECHR. In the Serife Yig˘it v Turkey case the ECtHR ruled: 18

76 Langenfeld/Mohsen, Zeitschrift fu ¨ r Ausla¨nderrecht 2003, p. 398, 400; on the status of the ECHR within EU Law see Thym/Hailbronner, Introduction, MN 51. 77 ECJ, Chakroun, C-578/08, EU:C:2010:117, para 44. 78 Protocol No. 8 to the Treaty of Lisbon specified some reservations with regard to a future agreement on accession to the ECHR (Protocol No. 8 relating to Article 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms), OJ 2008 C 115/273. 79 For the state of the process of accession see http://www.coe.int/t/dghl/standardsetting/hrpolicy/ Accession/default_en.asp [last accessed 20 February 2015]. 80 ECJ, Accession to the ECHR, Opinion 2/13, EU:C:2014:2454. 81 ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 36. 82 ECJ, Commission v Germany, C-518/07, EU:C:2010:125, para 10; ECJ, Baumbast and R, C-413/99, EU:C:2002:493, para 72. 83 ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 52 et seqq.

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‘The Court reiterates that by guaranteeing the right to respect for family life, Article 8 presupposes the existence of a family. Article 8 applies to the ‘family life’ of the ‘illegitimate’ family as well as to that of the ‘legitimate’ family (see Marckx v. Belgium, 13 June 1979, § 31, Series A no. 31, and Johnston and Others, cited above, § 62). 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 (see K. and T. v.Finland [GC], no. 25702/94, § 150, ECHR 2001-VII). The notion of the ‘family’ is not confined solely to marriage-based relationships and may encompass other de facto ‘family’ ties where the parties are living together outside of marriage (see Johnston and Others, cited above, § 55; Keegan v.Ireland, 26 May 1994, § 44, Series A no. 290; and Al-Nashif v. Bulgaria, no. 50963/99, § 112, 20 June 2002). Accordingly, when deciding whether a relationship can be said to amount to ‘family life’, a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have had children together (see X, Y and Z v. the United Kingdom, 22April 1997, § 36, Reports of Judgments and Decisions 1997-II, and Merger and Cros v. France, no. 68864/01, § 45, 22 December 2004).’84

With regard to the question whether Article 8 ECHR entails a right to family 21 reunification in the sense of allowing a person entry to a Member State, the ECtHR only had to decide on a few cases85 and has repeatedly ruled that Article 8 ECHR does not grant a direct right to family reunification. As a 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’86 and that ‘a State has the right to control the entry of non-nationals into its territory’.87 Therefore the ‘right’ to family reunification is only an indirect one,88 following from positive obligations ‘inherent in effective ‘respect’ for family life’.89 The ECtHR considers that in this context ‘[…] the boundaries between the State’s positive and negative obligations under this provision (Article 8) do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation.’90

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 84 ECtHR, Judgment of 20 January 2009, No. 3976/05, Serife Yig ˘it v Turkey, paras 25–26, referred to the Grand Chamber on 14 September 2009. 85 ECtHR, Judgment of 28 May 1985, No. 9214/80, 9473/81 and 9474/81, Abdulaziz, Cabales and Balkandali v The United Kingdom; Judgment of 28 November 1996, No. 21702/93, Ahmut v The Netherlands, para 63; Judgment of 19 February 1996, No. 23218/94, Gu¨l v Switzerland; Judgment of 21 December 2001, No. 31465/96, Sen v The Netherlands; Judgment of 1 December 2005, No. 60665/00, Tuquabo-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. 86 ECtHR, Judgment of 19 February 1996, No. 23218/94, Gu ¨ l v Switzerland, para 38. The case concerned the refusal of Swiss authorities to allow a 12–year-old Turkish boy to join his parents who were living in Switzerland; Judgment of 14 June 2011, No. 38058/09, Biao v Denmark, para 53. 87 ECtHR, Judgment of 28 May 1985, No. 9214/80, 9473/81 and 9474/81, Abdulaziz, Cabales and Balkandali v The United Kingdom, para 67. 88 Martin, ‘Comments on N. v. Inspecteur van de Belastingdienst Oost/kantoor Almelo (Case C-470/04 of 7 September 2006), European Parliament v. Council(Case C-540/03 of 27 June 2006) and Tas-Hagen and Tas (Case C-192/05 of 26 October 2006)’ EJML 9 (2007), p. 141, 152. 89 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. 90 ECtHR, Judgment of 28 November 1996, No. 21702/93, Ahmut v The Netherlands, para 63, emphasis added; see Judgment of 19 February 1996, No. 23218/94, Gu¨l v Switzerland, para 38; Judgment of 1 December 2005, No. 60665/00, Tuquabo-Thekle v The Netherlands, para 42; ECtHR, Judgment of 30 July 2013, No. 948/12, Berisha v Switzerland, para 48; Judgment of 14 June 2011, No. 38058/09, Biao v Denmark, para 52.

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receiving society as a whole in controlling immigration.91 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.92 In the Gu¨l case of 1996 the ECtHR rejected family reunification because the 12–year old boy seeking admission had always lived in Turkey and had therefore grown up in the cultural and linguistic environment of this country, although his parents had lived in Switzerland for 8 and 10 years respectively.93 In the Ahmut case of the same year the Court rejected family reunification of a 14-year old boy from Morocco, who had been raised there, taking into consideration that his father had taken ‘conscious decision to settle in the Netherlands’ and was not prevented from returning to Morocco and arguing that ‘[Article] 8 does not guarantee a right to choose the most suitable place to develop family life.’94 23 Recently, the ECtHR seems to have modified the very strict application of the ‘elsewhere approach’. In the Sen 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.95 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.96 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 approach97 is an open question. Nothing indicates as yet 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.98 The ECtHR explicitly applied the ‘most adequate means’ formula again in the Tuquabo-Tekle case of 2005, granting family reunification to a 15–year old child.99 Like in the Sen case the child’s parents and/or, respectively step-parents were legally residing in the Netherlands for a long time, had applied for and obtained Dutch nationality and siblings or step-siblings were Dutch nationals, born-in and went to school in the Netherlands. Although in the Tuquabo-Tekle case the child concerned was already 15 years old, the Court considered that in the particular circumstances of the case this was not an element which should lead to a different assessment than in the Sen case. 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 91 ECtHR, Judgment of 28 May 1985, No. 9214/80, 9473/81 and 9474/81, Abdulaziz, Cabales and Balkandali v The United Kingdom, para 67; Judgment 17 May 1995, No. 21702/93, Ahmut v The Netherlands, para 67(a); Judgment of 19 February 1996, No. 23218/94, Gu¨l v Switzerland, para 38. 92 ECtHR, Judgment of 19 February 1996, No. 23218/94, Gu ¨ l v Switzerland, para 39. 93 Ibid., para 42. 94 ECtHR, Judgment of 28 November 1996, No. 21702/93, Ahmut v The Netherlands, para 71, emphasis added. 95 ECtHR, Judgment of 21 December 2001, No. 31465/96, Sen v The Netherlands, para 41. 96 ECtHR, Judgment of 21 December 2001, No. 31465/96, Sen v The Netherlands, para 40; ECtHR, Judgment of 1 December 2005, No. 60665/00, Tuquabo-Thekle v The Netherlands, para 47. 97 See Wiesbrock, Legal migration to the EU, p. 518. 98 See also Spijkerboer, ‘Structural Instability: Strasbourg Case Law on Children’s Family Reunion’, EJML 11 (2009), p. 271, 272. 99 ECtHR, Judgment of 1 December 2005, No. 60665/00, Tuquabo-Thekle v The Netherland.

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another country.100 While the best interest of children must be paramount,101 when the children concerned have reached an age where they were not as much in need of care as young children, ‘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.’102 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.’103 Article 8 ECHR does not only have implications on questions of entry of a third 24 country national, but also on 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 had at some point had the possibility to legalise her stay. In contrast in the similar situation in the Omoregie case104 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. In the Rodrigues da Silva case the Court summarised the factors that need to be taken into account when making the case-by-case assessment: – the extent to which family life is effectively ruptured, – the extent of 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 – 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.105 In sum only in cases in which there is no reasonable alternative to admitting a family 25 member to the territory 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 family reunification and their socialisation in the country of origin, 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 1 the purpose of the Directive is ‘to determine the conditions for 26 the exercise of the right to family reunification’106 whereas the first proposal contained the words ‘establishing a right to family reunification’.107 This change in Article 1 led to the question whether the Directive still entails a right to family reunification. However, 100

ECtHR, Judgment of 30 July 2013, No. 948/12, Berisha v Switzerland, para 50. Ibid., para 51. 102 Ibid., para 56. 103 ECtHR, Judgment of 14 June 2011, No. 38058/09, Osman v Denmark para 65. 104 ECtHR, Judgment of 31 July 2008, No. 265/07, Darren Omoregie and Others v. Norway. 105 ECtHR, Judgment of 31 January 2006, No. 50435/99, Rodrigues da Silva and Hoogkamer v The Netherlands, para 38; Judgment of 14 June 2011, No. 38058/09, Biao v Denmark, para 53. 106 Emphasis added. 107 Commission Proposal COM(1999) 638 final, Article 1, emphasis added. 101

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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.108 The existence of this right is expressly confirmed by the ECJ in Parliament v Council.109 After having recalled various legal instruments protecting the right to lead a normal family life, the Court states: ‘These various instruments […] do not create for the members of a family an individual right to be allowed to enter the territory of a State and cannot be interpreted as denying Member States a certain margin of appreciation when they examine applications for family reunification. Going beyond those provisions, Article 4(1) of the Directive imposes precise positive obligations, with corresponding clearly defined individual rights, on the Member States, 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.’110

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Thus, the Directive for the first time sets up a union wide right to family reunification and as a consequence has, in some Member States, led to the introduction of a detailed set of rules on family reunification.111 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 ECHR112 although – not being an absolute right – the exercise of this right is subject to the practical and procedural conditions determined by the Directive.113 By setting up such standards, the Directive hinders Member States continuing an approach prevailing in national migration politics to restrict family reunification.114

Article 2 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) “refugee” means 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, as amended by the Protocol signed in New York on 31 January 1967; (c) “sponsor” 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; (d) “family reunification” means the entry into and residence in a 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; (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)

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Schaffrin, in Carlier/De Bruycker (eds), Immigration and Asylum Law of the EU, p. 90, 99. ECJ, Parliament v Council, C-540/03, EU:C:2006:429. 110 Ibid., paras 59–60, emphasis added. 111 Commission Report, COM(2008) 610 final, p. 14. 112 ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 60. 113 Commission Proposal, COM(1999) 638 final, p. 11. 114 Commission Report, COM(2008) 610 final, p. 2. 109

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No 1030/2002 of 13 June 2002 laying down a uniform format for residence permits for third country nationals(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 long as they are not effectively taken into the care of such a person, or minors who are left unaccompanied after they entered the territory of the Member States. Content I. II. III. IV. V. VI. VII.

General remarks and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Third country national (Article 2(a)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Refugee (Article 2(b)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sponsor (Article 2(c)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Family reunification (Article 2(d)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Residence permit (Article 2(e)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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 1 definitions concern terms used in one or several provisions of the Directive. The same regulation technique is used also in other directives.115 Article 2 aims at ensuring that these terms are interpreted identically by national law wherever they appear in the Directive. Thus Article 2 shall only help the Member States in understanding and applying the Directive in the way the European legislator intended it. 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. Article 2 largely corresponds to the original proposal of the Commission, with two 2 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 from the definitions of Article 2(c) and (d) to harmonise the definitions with the exclusion of this group of persons from the scope of application during the course of negotiations of the Directive (cf. Article 3(3) of the Directive). Some of the definitions, in particular the definition of ‘refugee’ (Article 2(b)) differ 3 from those given to the same terms in other directives.116 This is partly due to the fact 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 seqq TEC, now Article 77 et seqq 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 adapt the definitions to match with those used in other proposals or directives, such as the former Asylum Qualification (5)

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. 116 See the definition of ‘refugee’ in Article 2(d) of the Asylum Qualification Directive 2011/95/EU. 115

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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 citizen under Article 17(1) TEC (now Article 20(1) TFEU). Thus, Union citizens including citizens of EU Member States not bound by the Directive117 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.118 The Directive also applies to third-country national sponsors who are long-term residents according to the Long Term Residents Directive 2003/109/EC119 since that Directive does not provide for special rules on family reunification.120 Exceptionally, the Long Term Residents Directive 2003/109/EC contains special rules if a 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).121 5 Comparing Article 2(a) with (b) and (f), which explicitly mention third-country nationals and stateless persons, one wonders whether stateless persons are included in Article 2(a). According to the wording of Article 2(a), this seems unlikely as stateless persons do not possess the nationality of any country. Therefore they do not possess the nationality of a third country. Contrary to the definition of the previous proposals, the third proposal explicitly included stateless persons in the definition of third-country nationals.122 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. However, the drafting history of the Directive permits a wider interpretation. The definition in Article 2(a) corresponds to the initial and the second proposal. The Commission, when presenting the first proposal, commented that the concept of third-country national was given a negative meaning (‘not a citizen of the Union’) and that stateless persons within the meaning of the New York Convention of 28 September 1954 were included.123 When presenting the clause in the third proposal the Commission stated that stateless persons should be included, ‘this being only implicit in the original proposal’.124 This statement shows that while an explicit clause on stateless persons is missing in Article 2(a), the inclusion of stateless persons has been implicitly deduced by the negative definition. Thus, stateless persons within the meaning of the New York Convention of 28 September 1954 also fall within the notion of third-country nationals.125 4

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Denmark, Ireland and the United Kingdom, see recitals 17 and 18 of the Directive. Schaffrin, in Carlier/De Bruycker (eds), Immigration and Asylum Law of the EU, p. 90, 98. 119 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). 120 Schaffrin, in Carlier/De Bruycker (eds), Immigration and Asylum Law of the EU, p. 90, 98. 121 Thym, Long Term Residents Directive 2003/109/EC, Article 16 MN 1. 122 Commission Proposal, COM(2002) 225 final, p. 14, Article 2(a). 123 Commission Proposal, COM(1999) 638 final, p. 11. 124 Commission Proposal, COM(2002) 225 final, p. 5; Commission Proposal, COM(1999) 638 final, p. 11. 125 Commission Proposal, COM(1999) 638 final, p. 11. 118

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III. Refugee (Article 2(b)) 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 1 A(2) of the Geneva Convention in connection with Article 1(2) of the Protocol. The Geneva Convention does not grant a right to family reunification, although the principle of family unity was recognised by the Conference which adopted the Geneva Convention in its Final Act.126 Article 1A(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.127 Unlike those provisions, Article 2(b) does not explicitly refer to the former Asylum Qualification Directive 2004/83/EC (or its 2011 recast128) which had not yet been adopted at the time when the Family Reunification Directive was adopted. 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 1 of the Geneva Convention as interpreted by the Asylum Qualification Directive 2011/95/EU.129 Article 2(d) of the Asylum Qualification Directive 2011/95/ EU mainly copies the definition given in Article 1 A(2) of the Geneva Convention. However, it is more restrictive in two aspects as it limits the personal scope of application to third-country nationals and exempts persons to whom Article 12 of Directive 2011/95/EU does not apply. The first aspect does not represent a problem, as the scope of application of the Family Reunification Directive is limited to third-country nationals anyway (cf. Article 3(3) of the Family Reunification Directive 2003/86/EC). The second restriction concerns Article 12 of the Asylum Qualification Directive 2011/95/EU which enumerates specific grounds for exclusion from being a refugee. By enumerating these specific grounds for exclusion, Article 12 of Directive 2011/95/EU interprets the Geneva Convention in a way which may result in restrictions to the definition of a refugee given by the Geneva Convention. All EU Member States bound by the Family Reunification Directive 2003/86/EC are also bound by the Asylum Qualification Directive 2011/95/EU and must therefore respect the notion of refugee as laid down in the latter. They have agreed upon a uniform refugee concept throughout the Union which fits into the overall European migration concept, i. e. the Geneva Convention as it is interpreted by the Asylum Qualification Directive 2011/95/EU. Thus, although Article 2(b) of the Family Reunification Directive only explicitly refers 126 Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, 25 July 1951, A/CONF.2/108/Rev.1, part IV.B. 127 See Article 2(g) Asylum Procedures Directive 2013/32/EU, Article 2(d) Asylum Qualification Directive 2011/95/EU, or the definitions of ‘applicant for international protection’ in Article 2(b) Asylum Reception Directive 2012/32/EU and Article 2(c) of Dublin III Regulation (EU) No 604/2013. 128 Asylum Qualification Directive 2011/95/EU. 129 Or the corresponding definition in Article 2(g) Asylum Procedures Directive 2013/32/EU.

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to the Geneva Convention, it must be interpreted as meaning the Geneva Convention in the way it is interpreted by the Asylum Qualification Directive 2011/95/EU. This in turn means that persons who fulfil an exclusion ground of Article 12 Asylum Qualification Directive cannot be considered as refugees in the application of Directive 2003/86/EC. 10 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). 11 In contrast to the definition given in other directives, Article 2(b) does not explicitly exclude citizens of the Union (Article 20 TFEU). Thus, the general principle of EU Member States accepting each other as ‘safe countries’, a principle which forms the basis of the CEAS, is not expressly reflected in the provision. However this does not have any relevance, as the scope of application of the entire Family Reunification Directive is limited to third-country nationals including stateless persons by Article 3(3) (cf. Article 2(c) and (d)), thus making it superfluous to explicitly exempt Union citizens from the notion of refugee in Article 2(b).

IV. Sponsor (Article 2(c)) Article 2(c) describes the term ‘sponsor’ as ‘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’.130 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’.131 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,132 the initial proposal covered Union citizens who have not exercised their right to free movement.133 Following the exclusion of this group from the scope of application of the Directive, Union citizens are no longer mentioned in Article 2(c). 13 The sponsor must be ‘residing lawfully’ in a Member State. The prerequisite of ‘lawful residence’ is defined more precisely in Article 3(1) and (2) of the Directive (see below Article 3 MN 4 et seqq). The wording of Article 2(c) shows that the prerequisite of lawful residence in the territory of a Member State is irrespective of the reasons for which the thirdcountry national was authorised to reside there. It is also irrelevant whether the sponsor had been unlawfully resident prior to the lawful residence. Reasons for lawful residence may be employment, exercise of a self-employed activity, studies, non-gainful activity, granting of refugee status.134 Even the enjoyment of temporary and subsidiary kinds of protection may qualify for lawful residence135 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 seqq). 12

V. Family reunification (Article 2(d)) 14

‘Family reunification’ is defined by Article 2(d) as ‘the entry into and residence in a Member State by family members of a third-country national residing lawfully in that 130

Emphasis added. Commission Proposal, COM(1999) 132 OJ (2004 L 229/35–48). 133 Commission Proposal, COM(1999) 134 Commission Proposal, COM(1999) 135 Commission Proposal, COM(1999) 131

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638 final, Article 2(d), emphasis added. 638 final, p. 12. 638 final, p. 12. 638 final, p. 12.

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Member State in order to preserve the family unit, whether the family relationship arose before or after the resident’s entry’.136 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 for the Directive this right has been reduced as more and more derogations were introduced into the Directive that enable the Member States to restrict family reunification. Article 2(d) only mentions preserving the family unit whereas the first two proposals 15 stipulated that family reunification was entry and residence by family members ‘in order to form or preserve the family unit’.137 The Commission then explained that the concept of family reunification was meant to cover ‘two situations: family reunification stricto sensu and family formation. In the former case, the applicant has had to leave his family members to settle in a Member State and wishes to have them join him. In the latter case, he decides after entering a Member State to form a family with a third-country national who does not reside in the Member State and wishes to have this person join him.’138 The third proposal deleted the explicit 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.139 Furthermore, Article 2(d) clarifies that the Directive applies ‘whether the family relationship arose before or after the resident’s entry’. On the contrary, only in case of recognised refugees family relationships may be restricted to those which predate the sponsor’s entry (Article 9(2)), thereby implying 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. The question, whether Article 2(d) precludes Member States when applying the 16 Directive from distinguishing between family relationships that arose before or after the sponsor’s entry and applying different conditions to both groups has been decided by the ECJ in the Rhimou Chakroun case.140 The Dutch court Raad van Staate had lodged a reference to the ECJ on 29 December 2008, asking for a preliminary ruling on the question whether such distinction is permissible under the Directive in regard to the resources requirement stipulated under Article 7(1)(c).141 The ECJ has answered the question to the negative with a view to a lack of such distinction in the Directive, in Article 8 ECHR and Article 7 of the EU Charter of Fundamental Rights. The Court stated: ‘Article 2(d) of the Directive 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’.142 136

Emphasis added. Emphasis added. 138 Commission Proposal, COM(1999) 638 final, p. 12. 139 Commission Proposal, COM(2002) 225 final, p. 5. 140 ECJ, Chakroun, C-578/08, EU:C:2010:117. 141 ECJ, Chakroun, C-578/08, EU:C:2010:117. 142 ECJ, Chakroun, C-578/08, EU:C:2010:117. Wiesbrock argues that the Court interprets the rights of third-country nationals in line with case-law applicable to moving Union citizens, thus changing its approach taken in Parliament v Council, where it made a clear distinction between the rights of the two groups. However, this is also ‘notable, as it deviates from the approach taken by the ECtHR, which used to be the main point of reference for the Court when dealing with the rights of third-country nationals’, since the ECtHR is of the opinion that Article 8 ECHR does not grant a right to family reunification. See Wiesbrock, ‘The Right to Family Reunification of Third-Country Nationals under EU Law’ (Case Note on Rhimou Chakroun), EuConst 6 (2010), p. 462, 470 and 473. 137

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However, the concept of ‘family reunification’ of Article 2(d) requires the existence of a family. Thus, family formation stricto sensu, 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, MN 15, 16) 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.143 The Commission has specified that this situation remains subject to national law.144 Insofar, the provision corresponds to the scope of application of ‘family’ in Article 8 ECHR which requires an existing family.145 The ECtHR has stated repeatedly that Article 8 ECHR does not include a guarantee on family formation.146 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).147

VI. Residence permit (Article 2(e)) 18

Article 2(e) establishes the formal requirements of a residence title by referring to 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.148 The Regulation stipulates that certain titles may not be regarded as residence permits and therefore cannot be considered under 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 1(2)(a)) under Regulation (EC) No. 1030/2002).149 The definition of Article 2(e) is relevant for Article 3(1) of the Directive which specifies that the sponsor must hold a specific residence permit. Thus, the sponsor must hold a residence permit in the sense of Article 2(e). The definition of Article 2(e) is further relevant for Article 13(2) which specifies the residence permit of family members. Member States are also obliged to ensure that the residence permit the family member is entitled to according to Article 13(2) of the Directive is in conformity with Article 2(e).

VII. Unaccompanied minor (Article 2(f)) 19

The definition of the term ‘unaccompanied minor’ was introduced into the Directive during the final negotiations in the Council.150 The definition is relevant for Article 10(3) of the Directive, which stipulates 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 143

Commission Proposal, COM(1999) 638 final, p. 12. Commission Proposal, COM(1999) 638 final, p. 12. 145 Grabenwarter, EMRK, p. 193, MN 19; Russo in: Pettiti/Decaux/Imbert (eds), La Convention Europe´enne des Droits de l’Homme (Economia, 1999), Art. 8 § 1, p. 316. 146 ECtHR, Judgment of 13 June 1979, No. 6833/74, Marckx v Belgium, para 31; Judgment of 28 May 1985, No. 9214/80, 9473/81 and 9474/81, Abdulaziz, Cabales and Balkandali v The United Kingdom, para 68. 147 Grabenwarter, EMRK, p. 193, MN 19. 148 OJ 2002 L 157/1. 149 Dienelt, Die Auswirkungen der Familienzusammenfu ¨ hrungsrichtlinie auf das AufenthG, p. 57. 150 See Commission Proposal, COM(2002) 225 final, which did not yet contain such a provision. 144

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their specific needs and their vulnerability151 – additional rights stipulated in Article 10(3) of the Directive. 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 1989,152 which obliges the States Parties ‘to provide, as they consider appropriate, cooperation 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 asylum issues.153 An 20 equivalent definition was first mentioned in the first subparagraph of Article 1(1) of Council Resolution 97/C 221/03 of 26 June 1997 on unaccompanied minors who are nationals of third countries154 which establishes guidelines for the treatment of unaccompanied minors, with regard to matters such as the conditions for their reception, stay and return and – in the case of asylum seekers – the handling of applicable procedures (Article 1(3) of the Resolution). According to the definition of Article 28f) the age of majority is 18 years, which in 21 general corresponds to Article 1 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(f) 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 not allowed to apply an age of majority below 18 years irrelevant of its national law. Furthermore, Article 3(5) of the Directive, which generally allows Member States to adopt or retain more favourable rules under national law, enables Member States to apply an age of majority above 18 years (see below, Article 3 MN 19 et seqq).155 According to the definition given in Article 2(f) a minor is regarded as ‘unaccompanied’ in case he or she has entered a Member State’s territory ‘unaccompanied by an adult responsible by law or custom, and for as long as [he or she 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.’156 It is not specified whether, with regard to the term ‘the adult responsible’, the definition refers to the ‘law and custom’ of the country of origin or of the Member State. However, since the purpose of Article 2(f) is to privilege unaccompanied minors, the provision must be regarded as also referring to the law and custom of the country of origin, irrespective of whether the Member State of destination formally recognises the status concerning the term ‘adult responsible’. Otherwise the Member Sate of destination could, by recognising the status of an adult responsible, limit the application of Article 2(f) and consequently Article 10(3) of the Directive.

Article 3 1. 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 151

Commission Proposal, COM(1999) 638 final, p. 16. See explanation of the Commission in Commission Proposal, COM(1999) 638, p. 16. 153 See Article 2(h) of the Asylum Reception Directive Directive 2013/32/EU; Article 2(l) of the Aslyum Qualification Directive 2011/95/EU; Article 2(f) of the Temporary Protection Directive 2001/55/EC. 154 OJ 1997 C 221/3. 155 See Hailbronner, Zeitschrift fu ¨ r das Gesamte Familienrecht 2005, p. 1, 3 concerning optional provisions. 156 Emphasis added. 152

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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; (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 workers of 24 November 1977. 5. This Directive shall not affect the possibility for the Member States to adopt or maintain more favourable provisions. Content I. II. III. IV. V. VI.

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

1 3 10 14 16 19

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. 2 Although the general structure of Article 3 has remained untouched, the provision 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’.157 1

157 Commission Proposal, COM(2002) 225 final, p. 5, see Walter, Familienzusammenfu ¨ hrung in Europa, p. 222.

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II. Personal scope of application (Article 3(1)) Article 3(1) 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.158 Member States must accept those sponsors who fulfil the requirements stipulated in Article 3(1). As defined by Article 2(c) the sponsor must be a third-country national legal 4 resident of a Member State. The definition of third-country nationals mentioned in Article 2(a) includes all third-country nationals irrespective of the reasons for their residence.159 However, third-country nationals legally residing in a Member State are only eligible sponsors if they fulfil additional requirements for the type of residence permit according to Article 3(1). 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(1) stipulates that the period of validity shall be ‘of one year or more’ Member States are free to require a period of validity which is more than one year. However, the period required cannot be more than two years. This follows from Article 8(1) 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.’160 If the qualifying period was longer, the right to family reunification would be devoid of substance.161 As a consequence of the definition given for ‘residence title’ in Article 2(e) certain titles, such as visa (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 with a residence permit valid for less than a year, as may be the case with temporary workers, or with a residence permit confined to seasonal employment, are not entitled either.162 The question of family reunification in this case is subject to Member States’ national law.163 Second, the sponsor must have reasonable prospect of obtaining the right of 5 permanent residence (Article 3(1)). According to the Commission the requirement exempts sponsors from family reunification who have a temporary residence permit without the possibility of renewal.164 In particular, the exclusion applies to au pairs, exchange and placement students.165 Seasonal workers and temporary workers are also excluded.166 The Directive does not prevent Member States from granting them family reunification under national law.167 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 permanent residence status.168 158

Labayle/Pascouau, Odysseus Synthesis Report on Directive 2003/86/EC, p. 36. Commission Proposal, COM(1999) 638 final, explanations on Article 3, p. 12. 160 Emphasis added. 161 Commission Proposal, COM(1999) 638 final, explanations on Article 10, p. 18. 162 Commission Proposal, COM(1999) 638 final, Commentary on the Articles, art. 3, p. 12–13. COM guidance for application, p. 5. 163 Commission Proposal, COM(1999) 638 final, Commentary on the Articles, art. 3, p. 12–13. 164 Commission Proposal, COM(2002) 225 final, p. 5. 165 Commission Proposal, COM(2002) 225 final, p. 5. 166 Commission Proposal, COM(1999) 638 final, explanations on Article 3; Schaffrin, in Carlier/De Bruycker (eds), Immigration and Asylum Law of the EU, p. 90, 103. 167 Labayle/Pascouau, Odysseus Synthesis Report on Directive 2003/86/EC, p. 36. 168 Peers/Guild et al, EU Immigration Law, p. 250. 159

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The prospect required must be ‘reasonable’. It is not entirely clear what this means, as emphasised by many states during the stakeholder process following the Commission Green Paper on the right to family reunification.169 In order to asses this, Member States should examine the prospect of obtaining the right to permanent residence ‘on a caseby-case basis taking into account the individual circumstances, such as the nature and type of residence permit, the administrative practice, and other relevant factors related to the sponsor’s situation.’170 This test entails a prognosis of meeting the criteria for long term residence not at the moment of assessment, but sometime in the future, leaving a wide margin of appreciation to Member States.171 The fact that additional conditions under national law with regard to integration, housing and means of subsistence may need to be met in obtaining a permanent residence permit, does therefore not exclude the application of the Directive. As a general criterion the assessment of whether the third country national is on track of eventually receiving a permanent residence permit could be used. 7 It is questionable under which conditions residence permits issued for a specified 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 in 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, the prognosis is positive if under national law the permit under regular circumstances may be renewed and/or eventually be changed into a permanent residence permit. Residence permits which either by law or by specific administrative orders172 are non-renewable, cannot be considered as sufficient173 even if an applicant may shift from one type of residence to another type of residence granted for a different purpose. The successive issuance of extensions of these kinds of permits with the intention of circumventing the applicability of the reasonable prospects test would undermine the objective of the Directive.174 Peers notes that the question of renewability should take into account, where relevant, whether other EU legislation175 provides for the residence permit to be renewed.176 Some Member States allow for family reunion where the sponsor has a temporary residence permit only subject to a minimum period of residence.177 Even if the sponsor does not have the opportunity to prove that he has a reasonable prospect of obtaining a permanent residence permit, this approach cannot be regarded as violating Article 3(1) per se,178 since Article 8(1) 6

169 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: http://ec.europa.eu/dgs/home-affairs/what-is-new/public-consultation/2012/consulting_0023_en.htm [last accessed 27 January 2015]. 170 Commission Communication, COM(2014) 210 final, p. 4. 171 Ibid. 172 See for instance Section 8(2) of the German Aufenthaltsgesetz (Residence Act). 173 Commission Communication, COM(2014) 210 final, p. 4. 174 Commission Communication, COM(2014) 210 final, p. 4, 5. 175 For example the Blue Card Directive 2009/50/EC, the Researchers’ Directive 2005/71/EC or the Asylum Qualification Directive 2011/95/EU. 176 Peers/Guild et al, EU Immigration Law, p. 252. 177 As practiced in some Member States, Commission Report, COM(2008) 610 final, p. 4. 178 Peers argues that this practice is ‘objectionable’, Peers/Guild et al, EU Immigration Law, p. 250.

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explicitly authorises Member States to require a minimum period of stay before allowing for family reunification. On the other hand, an applicant/sponsor may not rely upon the Directive if the 8 individual situation is subject to national rules which authorize the alien authorities either to prescribe the termination of a residence permit or refuse its renewal. This may be based on public order considerations 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.179 Therefore, the Directive is also applicable where a family member is an asylum-seeker, has been rejected as a refugee, is staying in a Member State illegally, or is covered by temporary protection.180

III. Non-application (Article 3(2)) Article 3(2) excludes certain groups of persons from being sponsors. The first 10 category are asylum seekers 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 stipulated in Article 3(1).181 In line with this reasoning the Directive is applicable as foreseen in Article 9 once refugee status is recognised.182 The second category concerns persons residing in a Member State on the basis of 11 temporary 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.183 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.184 The third category concerns persons enjoying subsidiary forms of protection. They 12 are not included in the scope of the Directive. 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 for ‘authorisation to reside on that basis and awaiting a decision on their status’ are also excluded (Article 3(2)(c)). The original Commission proposal has included persons who are enjoying subsidiary forms of protection. Following the recommendation of the European Parliament185 this provision was deleted in the second proposal since the Commission recognised that the absence of a harmonised concept of subsidiary protection at Community level at that time constituted an obstacle to their inclusion in the proposed directive.186 Family reunification of such persons therefore 179

Commission Proposal, COM(1999) 638 final, p. 13. Commission Proposal, COM(1999) 638 final, p. 13.The exclusion of persons enjoying temporary protection stipulated in Article 3(2)(b) of the Directive only applies to the sponsor, not the family member. 181 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. 182 Boeles/den Heijer et al., European Migration Law, p. 132. 183 OJ 2001 L 212/12. 184 See Skordas, Temporary Protection Directive 2001/55/EC, Article 15 MN 13, in this volume. 185 OJ 2000 C 135/75. 186 Commission Proposal, COM(2000) 624 final, p. 2. 180

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was envisaged for separate legislative action.187 The Commission nevertheless considered that persons entitled to subsidiary protection should be entitled to family reunification.188 13 The rights connected with the status of subsidiary protection were subsequently regulated by the former Asylum Qualification Directive 2004/83/EC and its 2011 Recast.189 The Commission had conceded earlier that this directive should embrace family reunification.190 However, the Asylum Qualification Directive 2011/95/EU does not comprise a full-fledged right to family reunification, but only the right to ‘family unity’ (Article 23(1)) of particular persons already present in one of the Member States.191 Article 23(2) of the Asylum Qualification Directive 2011/95/EU entitles family members ‘to claim the benefits of Article 24–34’ of the Directive.192 This includes the right to a residence title, access to employment, education, social security, etc. The result is that family reunification to recognised refugees falls within the scope of application of the Family Reunification Directive 2003/86/EC, whereas it is not applicable to persons enjoying subsidiary protection. Thus, full family reunification of such persons as of yet is not regulated by EU law.

IV. Union citizens (Article 3(3)) 14

Article 3(3) excludes Union citizens from the scope of application. The first proposal only excluded family members of Union citizens exercising their right to free movement of persons from the scope of application.193 Family reunification to those EU citizens today is regulated in the Free Movement Directive 2004/38/EC.194 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 not exercising the right of free movement, as family reunification to those persons had not been covered by Community law on free movement of persons.195 The reason underlying this rule was that norms on free movement of the EC-Treaty are not applicable to EU citizens not exercising their rights of free movement within the EU.196 The proposal of the Commission to include family reunification to EU citizens which is not covered by free movement legislation was welcomed for bringing an end to so-called ‘reverse discrimination’.197 Germany opposed arguing that the provision would have the effect of extending family reunification to ethnic Germans (so-called ‘Aussiedler’) and 187

Commission Proposal, COM(2000) 624 final, p. 2–3. 174 Commission Proposal, COM(2000) 624 final, p. 2–3. In fact, the Stakeholder Responses to the Commission Green Paper showed that in 2012 Bulgaria and Estonia made no distinction between refugees and those under subsidiary protection, Commission, Summary of Stakeholder Responses to the Green Paper, 11 May 2012, p. 15. 189 See Article 18 in conjunction with Article 15. 190 Commission Proposal, COM(2000) 624 final, p. 3. 191 Walter, Familienzusammenfu ¨ hrung in Europa, p. 175. 192 See Battjes, Asylum Qualification Directive 2011/95/EU, Article 23 MN 15 et seq, in this volume. 193 Commission Proposal, COM(1999) 638 final, Article 3(3). 194 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 reunite with a Union citizen who resides in a Member State is covered by the 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 right’. 195 Commission Proposal, COM(1999) 638 final, Article 1. 196 ECJ, Carpenter, C-60/00, EU:C:2002:434, paras 37 et seqq. 197 Boeles, ‘Directive on Family Reunification: Are the Dilemmas Resolved?’, EJML (3) 2001, p. 61, 63. 188

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naturalized Germans.198 This criticism was supported by the Netherlands in order to allow less favourable treatment of Dutch nationals.199 In the third proposal all Union citizens, including non-mobile Union citizens, were exempted from the scope of application. The Commission argued that work had begun on recasting Community law on free movement of persons. Therefore, Article 3(3) should exclude family members of all Union citizens irrespective of whether they exercise the right of free movement. The position of Union citizens who do not benefit from free movement rights because they have never moved within the EU, was to be regulated separately in another directive once proposal COM(2001) 257 on Directive 2004/38/EC would be adopted.200 To date there is no proposal concerning Union citizens who have not exercised their freedom of movement rights. Thus, their position is still not regulated and family reunification to this group of persons is subject to national law.201 The wording of Article 3(3) is unclear on the point whether the exemption of Union 15 citizens also applies to dual nationals who hold the nationality of a third country as well as the nationality of a Member State.202 Dual nationals are treated differently by the Member States, as some apply the Directive in this case203, whereas others do not.204 The drafting history of Article 3(3) does not provide an answer to the question whether dual nationals are excluded. The original Commission proposal included Union citizens and was deleted on request of Germany and the Netherlands; however the issue of dual nationals was never discussed during the negotiations.205 If the Directive was not applicable to dual nationals they would lose their right to family reunification under the Directive and thus be treated less favourably than third-country nationals who never naturalized. Since the purpose of the Directive is to improve the rights of third-country nationals and further their immigration in the host country, one may argue that it would be against the objectives of the Directive if third-country nationals would be denied rights once they have integrated by becoming naturalized citizens. Therefore, the Directive should be interpreted to cover dual nationals who hold the nationality of the Member States concerned.

V. More favourable provisions in international agreements (Article 3(4)) Article 3(4) provides for the applicability of more favourable provisions in interna- 16 tional agreements concerning family reunification. According to Article 3(4) the Directive does not interfere with a Member State’s obligations under the agreements and treaties mentioned in that provision.206 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 men198 Hauschild, Zeitschrift fu ¨ r Ausla¨nderrecht und Ausla¨nderpolitik 2003, p. 266, 269; Council doc.11524/00 of 4 January 2001, p. 3. 199 Council doc. 5682/01 of 31 January 2001, p. 5; Walter, Familienzusammenfu ¨ hrung in Europa, p. 271 and 274; Groenendijk/Fernhout et al., The Family Reunification Directive, p. 12. 200 Commission Proposal, COM(2002) 225 final, p. 3. 201 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. of Family Reunification Rights 202 Groenendijk, EJML 2006, p. 215, 228. 203 Cyprus, Finland Sweden, see Groenendijk/Fernhout et al., The Family Reunification Directive, p. 11. 204 Groenendijk/Fernhout et al., The Family Reunification Directive, p. 11. 205 Groenendijk, EJML 2006, p. 215, 228. 206 Emphasised by the ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 107.

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tioned: the Agreement creating the European Economic Area of 1992, the Association Agreement with Turkey of 1962 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.207 Article 3(4)(a) is not limited to existing agreements but also extends to agreements that may be concluded in the future as harmonisation in this field is not comprehensive.208 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 1987209 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.210 17 The European Social Charter of 1961211 has been ratified by 10 States and the Revised European Social Charter has been ratified by 33 States, all EU Member States have ratified one or the other.212 The scope of application of the European Social Charter is limited to nationals of the Contracting States and recognised refugees regardless of their nationality.213 Article 19 of the European Social Charter (ESC) 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’214 (Article 19(6) ESC). The provision does not entail a direct right to family reunification.215 However, the Committee of Independent Experts has interpreted Article 19(6) ESC 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.216 The validity of restrictions will be evaluated in the light of Article 19(6) ESC. The admissibility of restrictions under Article 19(6) ESC depends on whether they are likely to deprive the obligation to facilitate of its content.217 It is within the discretion of the Contracting Parties to require sufficient resources,218 whereas higher resources are not permitted.219 Article 19(6) ESC has to be read in conjunction with Article 16 ESC, which safeguards the right of the family to social, legal and economic protection.220 Therefore, the duty to ‘facilitate … the reunion of the 207

Boeles/den Heijer et al., European Migration Law, p. 133, note 335. Commission Proposal, COM(2002) 225 final, p. 5. 209 As Ecker, Familienzusammenfu ¨ hrung, 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.int/Treaty/Commun/ChercheSig.asp?NT=163&CM=8&DF=06/10/2009&CL=ENG [last accessed 27 February 2015]. 210 Ecker, Familienzusammenfu ¨ hrung, p. 74. 211 European Social Charter of 1961, CETS No. 35, entry into force on 26.2.1965 after five Member States of the Council of Europe had ratified, available at: http://www.coe.int/t/dghl/monitoring/socialcharter/Presentation/TreatiesIndex_en.asp [last accessed 19 February 2015]. 212 State of ratifications as of 26 March 2013, available at: http://www.coe.int/t/dghl/monitoring/ socialcharter/Presentation/Overview_en.asp [last accessed 19 February 2015]. 213 Para. 1 and 2 of the Attachment to the Charter; Walter, Familienzusammenfu ¨ hrung in Europa, p. 92. 214 Emphasis added. 215 Walter, Familienzusammenfu ¨ hrung in Europa, p. 96. 216 Cholewinski, Migrant Workers in International Human Rights Law, p. 344. 217 Cholewinski, Migrant Workers in International Human Rights Law, p. 344. 218 Cholewinski, Migrant Workers in International Human Rights Law, p. 345 et seq. 219 Walter, Familienzusammenfu ¨ hrung in Europa, p. 96. 220 Cholewinski, Migrant Workers in International Human Rights Law, p. 344. 208

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family’ extends to a positive obligation to assist migrant workers and their families in finding suitable housing.221 The European Convention on the legal status of migrant workers222 of 1977 has 18 been ratified by eleven State Parties, thereof only six EU Member States.223 Three EU Member States have signed but not ratified the Convention.224 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 who is lawfully employed in the territory of a Contracting Party who are dependent on the migrant worker to join the migrant worker. However, this ‘entitlement’ is subject to some important conditions; thus, the migrant worker shall have ‘available for the family housing considered as normal for national workers in the region where the migrant worker is employed’ (the first sentence of Article 12(1) of the Convention, the provision is less restrictive than Article 7 (1)(a) of the Directive, since it does not require housing ‘for a comparable family in the same region and which meets the general health and safety standards in force in the Member State’), and the receiving country may render the authorization of family reunification ‘conditional upon a waiting period which shall not exceed twelve months’ (the second sentence of Article 12(1) of the Convention). 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 less favourable provisions of the Convention. For example, according to Article 12(2) of the Convention any State may make family reunion ‘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, cf. Article 7(1)(c) which only allows 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 allows 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 for by 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 19 more favourable provisions’ in their national law.225 It 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 221

Cholewinski, Migrant Workers in International Human Rights Law, p. 344, note 292. European Convention on the legal status of migrant workers, ETS No. 93, entry into force on 1May 1993, available at: http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=093&CM=4&CL=ENG [last accessd 27 February 2015]. 223 France, Italy, the Netherlands, Portugal, Spain and Sweden. The non-EU State Parties are Albania, Moldova, Norway, Turkey and Ukraine. The state of ratification is available at: http://conventions.coe.int/ Treaty/Commun/ChercheSig.asp?NT=093&CM=8&DF=01/12/2009&CL=ENG [last accessed 19 February 2015]. 224 Germany and Greece signed the Convention in 1977, Belgium signed it in 1978. All three EU Member States did not ratify the Convention. 225 See Hailbronner/Thym, Introduction, MN 28 et seqq on the role and interpretation of clauses on more favourable national provisions. 222

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that the Directive must be considered as a first step on the way to full harmonisation.226 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 national arrangements to be maintained – was first proposed by the European Parliament, the Commission rejected it arguing that it compromised harmonisation.227 20 The term ‘more favourable provisions’ implies that Article 3(5) may not be used to lower national standards concerning family reunification during the implementation of the Directive or after. It is questionable whether the provision may be used to extend the personal scope of application of the Directive. This would mean that Member States could, on the basis of Article 3(5), authorise the entry and residence of family members not explicitly mentioned in Article 4 or accept sponsors excluded by Article 3(2) and (3). However, the very fact that Article 4(1) explicitly lists eligible family members and explicitly mentions optional admissions of additional family members in Article 4(2) and (3) leads to the conclusion that Article 3(5) may not be used to extend the personal scope of application. This conclusion is supported by a comparison with Article 10(2) on refugees which explicitly authorises Member States to grant family reunification of other family members not referred to in Article 4, if they are dependent on the refugee. Furthermore, it was the aim of the European legislator to set harmonised standards in the field of family reunification, notably by entitling specific family members to be granted family reunification. 21 On the other hand, the drafting history may suggest a different understanding: During the negotiation on the second proposal the German delegation ‘suggested adding a paragraph to Article 5 [now Article 4] stipulating that the Directive did not prevent Member States from authorising reunification that included family members other than those covered in Article 5 [now Article 4].’228 This suggestion was apparently not taken up in Article 4. However, the suggestion concerned the second proposal which did not yet contain a general derogation clause like Article 3(5) of the Directive. In contrast to the existing provision, the third proposal explicitly limited the derogation clause of Article 3(5) by stipulating that the Directive was not affecting the possibility of the Member States to adopt or retain more favourable provisions ‘for persons to whom it applies’,229 therefore denying an extension of the personal scope of application of the Directive. As the Commission made clear at the time, this provision was intended to allow Member States to introduce more favourable rules only ‘for persons exercising the right to family reunification’.230 The wording of the third proposal thus shows that the Member States may not extend the personal scope of application as defined in the Directive.231 Since this restrictive formulation has not been taken up in Article 3(5) of the Directive, one may well conclude that Member States may grant entry and residence for family reunification to persons to whom the Directive does not apply. 22 However, the right to allow family reunification to other family members is not unlimited. Explicit optional clauses, such as Article 4(2) and (3), which extend the scope of application to certain family members in a deliberate and graduated way (‘shall’, ‘may’, ‘by way of derogation’), and especially the possibility to extend the personal scope on an optional basis (‘may’) or even by means of derogation, would be superfluous if Member States were allowed to extend the scope of application on their own 226

Commission Proposal, COM(2002) 225 final, p. 2, 6. Commission Proposal, COM(2000) 624 final, Explanatory Memorandum on amendment 9, p. 4. 228 Council doc. 11881/01 of 17 September 2001, p. 6, emphasis added. 229 Commission Proposal, COM(2002) 225 final, p. 15, Article 3(5). 230 Commission Proposal, COM(2002) 225 final, p. 6. 231 Schaffrin, in Carlier/De Bruycker (eds), Immigration and Asylum Law of the EU, p. 90, 93. 227

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decision. Furthermore, the purpose of the Directive was to harmonise the immigration channel of family reunification. For this purpose the family members entitled to family reunification are explicitly listed in Article 4. The need to harmonise national laws on migration is a consequence of the abolition of internal border control in a common European Schengen area, which implies that national legislation on migration of one Member State affects other Member States. Member States’ legislation allowing increased migration by family members into their territory has an impact on other Member States as well – which the latter have no chance to control. Thus, family members not listed under Article 3 and 4 may be admitted exclusively on the basis of national law only under specific circumstances.232 In line with the purpose of Article 3(5) such circumstances may be for example exceptional hardships as provided for under German law.233 In that case no obligation for a second Member State arises, cf. recital 10.234 With regard to optional provisions which enable Member States to apply different 23 rules under national law provided that specific conditions are met (cf. Article 4(2) and (3)), it is questionable whether Article 3(5) allows Member States to deviate from such conditions. The stipulation of explicit requirements in optional provisions would be deprived of any reasonable meaning if Member States were allowed to ignore them on the basis of Article 3(5). It follows that Article 3(5) cannot be interpreted as allowing Member States to deviate from explicit requirements mentioned in optional provisions.235 Article 3(5) interpreted in this manner does not lose any practical meaning. The 24 clause allows the granting of additional rights beyond those mentioned in the Directive. Thus family members may be granted access to rights such as education, professional formation, training and employment regardless of the restrictions laid down in Article 14.

CHAPTER II Family members Article 4 1. The Member States shall authorise the entry and residence, pursuant 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 232 Dienelt, Auswirkungen der Familienzusammenfu ¨ hrungsrichtlinie auf das AufenthG, p. 82; Langenfeld/Mohsen, Zeitschrift fu¨r Ausla¨nderrecht 2003, p. 398, 399. Peers, on the other hand, argues that Member States can set higher standards unilaterally in domestic law and there is no requirement that such standards be ‘compatible’ with the Directive, Peers/Guild et al, EU Immigration Law, p. 253. 233 See Section 36(2) German Aufenthaltsgesetz (Residence Act) which allows family reunification to additional family members in case of exceptional hardship. 234 Hailbronner, Zeitschrift fu ¨ r das Gesamte Familienrecht 2005, p. 1, 3. 235 Hailbronner, Zeitschrift fu ¨ r das Gesamte Familienrecht 2005, p. 1, 3. Peers argues that Member States can set higher standards unilaterally in domestic law and are not constrained to limit admission of extended family members to the conditions and persons set out in Article 4 of the Directive, Peers/Guild et al, EU Immigration Law, p. 253.

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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. 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 1(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 15, the Member States which decide to apply this derogation shall authorise the entry and residence of such children on grounds other than family reunification. 332

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Content I. General remarks and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. The right to family reunification for the nuclear family (Article 4(1)) . . . 1. Spouse (Article 4(1)(a)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Minor unmarried children (Article (4)(1)(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)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Optional admission of first-degree relatives and adult children (Article 4(2)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Optional admission of unmarried and registered partners (Article 4(3)) V. Optional admission of persons not mentioned in Article 4 . . . . . . . . . . . . . . . . VI. Polygamous marriages (Article 4(4)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VII. Minimum age for spouses (Article 4(5)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VIII. Age limit of 15 years for minor children (Article 4(6)) . . . . . . . . . . . . . . . . . . . . .

1 3 4 6 10 13 16 17 28 34 41 43 49 52

I. General remarks and drafting history Article 4 concerns the personal scope of application of the family members that are 1 eligible for family reunification. Particular rules apply to refugees according to Article 10 (cf. below Article 10 MN 7 et seqq). The Article was changed significantly during the negotiation process. The first 2 proposal followed the conclusions of the European Council of Tampere that the rights of third-country nationals should be aligned to those of Union citizens.236 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 couples237, relatives in the ascending line of the sponsor or his spouse or unmarried partner238, and adult children who are objectively unable to provide for their own needs due to reasons of state of health.239 The proposal was opposed by Member States. The Commission in reaction to the concerns of Member States considered it as impossible to reach a consensus on the obligation to allow entry and residence beyond the nuclear family.240 The third proposal which largely corresponds to the final Directive limited the circle of family members who are entitled to family reunification to the nuclear family, i. e. the spouse and minor children.241 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.242 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 236 Tampere European Council, Conclusion of the Presidency no. 18, available at: http://www.europarl.europa.eu/summits/tam_de.htm [last accessed 19 February 2015]. 237 Commission Proposal, COM(1999) 638 final, p. 26, Article 5(1)(a). 238 Commission Proposal, COM(1999) 638 final, p. 26, Article 5(1)(d). 239 Commission Proposal, COM(1999) 638 final, p. 26, Article 5(1)(e). 240 Commission Proposal, COM(2002) 225 final, p. 6. 241 See recital 9 of Directive 2003/86/EC. 242 See Article 4(2) and (3) of Directive 2003/86/EC.

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to one in case of a polygamous marriage. Article 4(5) contains an optional provision which enables the Member States to further restrict family reunification by requiring a minimum age for spouses.

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. The ECJ explicitly recognised the binding character of these provisions in the judgment of 27 June 2006 in the case Parliament v Council stating that Article 4(1) ‘imposes precise positive obligations, with corresponding clearly defined individual rights, on the Member States, 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.’243

1. Spouse (Article 4(1)(a)) The sponsor’s spouse – man or woman – is entitled to family reunification. The provision presupposes an existing marriage.244 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 5(1) first subparagraph. Their admission is subject to the Member States’ discretion under the conditions laid down in Article 5(3). Article 5(4) and (5) contain derogation clauses concerning family reunification of spouses (cf. MN 43 et seqq). 5 In the Serife Yig˘it case the ECtHR has elaborated on the question whether a religious marriage (in Turkish: imam nikah) may qualify for ‘family’ within the meaning of Article 8 ECHR and rejected it with a view to the legal situation in the contracting state concerned. The Court stated: 4

‘The Court observes that in some Council of Europe countries there is currently a social trend, supported by the legislature, towards accepting and even recognising other stable forms of union such as cohabitation or civil partnership alongside the traditional marriage bond. However, the Court notes that Turkish law makes no provision for a union outside civil marriage which has a basis in law and creates a civil partnership allowing two persons of the same or opposite sex to enjoy rights identical or similar to those granted to married couples. Given the margin of appreciation left to the Contracting Parties to the Convention in the matter, the Court cannot require them to legislate in a sphere such as this. In the instant case, according to the domestic law in force, a religious marriage (imam nikah) celebrated by an imam does not entail any undertakings vis-a`-vis third parties or the State. Irrespective of the applicant’s arguments, the decisive factor is not the length or mutually supportive nature of the relationship, but the existence of an undertaking carrying with it a body of rights and obligations of a contractual nature. In the absence of a binding legal agreement, it is not unreasonable for the Turkish legislature to afford protection solely to civil marriages. Thus, the Court points out that it has already found that marriage remains an institution that is widely accepted as conferring a particular status on those who enter it (see Burden v. the United Kingdom [GC], no. 13378/05, § 65, 29 April 2008, and Shackell v. the United Kingdom (dec.), no. 45851/99, 27 April 2000). Furthermore, Article 8 cannot be interpreted as imposing an obligation to establish a special regime for a particular category of unmarried couples (see Johnston and Others, cited above, § 68). In the particular circumstances of the present case, the Court considers that the difference in treatment between married and unmarried couples with regard to survivors’ benefits pursued a legitimate aim and was based on objective and reasonable grounds, namely the protection of the traditional family based on the bonds of marriage (see Mata Estevez v.Spain (dec.), no. 56501/00, ECHR 2001-VI).’245 243

ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 60. For the question whether family formation is included in the scope of application of the Directive, see above Article 2 MN 15 et seqq. 245 In the case ECtHR, Judgment of 20 January 2009, No. 3976/05, v Turkey, paras 29–30, referred to the Grand Chamber on 14 September 2009. 244

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2. Minor unmarried children (Article (4)(1)(b)–(d) and the second subparagraph) The first subparagraph of Article 4(1)(b)–(d) grant minor children a right to family 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)). Adult 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 not regarded as being dependent on the parents’ care. The situation that a child is living in an unmarried or registered partnership has not been dealt with in the Directive, although during the negotiations Sweden had expressly suggested a provision to include this scenario in Article 4.246 The Council documents do not provide further information why the Swedish suggestion has not been accepted. The express wording speaks against application of Article 4(1) second subparagraph in analogy. In practice, the authorities will rarely be able to establish whether an unmarried person is living with another person. Children are minor if they are below the age of majority laid down by national law in 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.247 The second subparagraph of Article 4(1)) prevents Member States from applying a different age of majority to cases of family reunification and migration law in general. According to the Commission the provision aims at avoiding differences between the regular age of majority in civil law and the age required for children in order to be eligible for family reunification.248 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. 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 MN 17 et seqq.), the other one is regulated in Article 4(6) and concerns minor children above 15 years of age (see below MN 52 et seqq.). Both cases are subject to a standstill clause which prevents Member States from introducing new restrictions as of the date of implementation, i. e. 3 October 2005. In addition to the requirements of being minor and unmarried, Article 4(1)(b)–(d) list further requirements which differ, dependent upon whether the minor child is seeking family reunification to both parents – the sponsor and his spouse – (lit.b), the sponsor only (lit.c), or the sponsor’s spouse only (lit. d).

6

7

8

9

a) Minor children of the sponsor and his/her spouse (lit.b). Minor children of the 10 sponsor and his or her spouse are eligible for family reunification according to Article 4(1)(b). Article 4(1)(b) – unlike (c) (family reunification to the sponsor) and (d) (family reunification to the sponsor’s spouse) – does not explicitly require the 246 Council doc. 6450/01 of 6 March 2001, p. 9, note 4: ‘S wished to replace the words ‘must not be married’ by the phrase “must not be cohabiting or living in a registered partnership”.’ 247 Council doc. no. 11881/01 of 17 September 2001, p. 4. 248 Commission Proposal, COM(1999) 638, p. 15.

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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 (1)(b) the sponsor or the spouse or both must have custody. Unlike Article 4(1)(c) and (d), (b) does not contain an element of dependency. The provision reflects the ECtHR’s jurisprudence on Article 8 ECHR (see above, Article 1 MN 18 et seqq.): The natural family bonds between minor children and their parents will only be presumed to have ceased in the most exceptional cases. Therefore, in the case of a minor child seeking family reunification to (both) his parents it is sufficient that the child has legal ties, whereas a genuine relationship with the family must not be demonstrated.249 Therefore, in case of Article 4(1)(b) an element of dependency must not be demonstrated. 11 Adopted children are eligible for family reunification in three different cases according to Article 4(1)(b): The adoption must have been made pursuant to (1) 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 they 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(1)(b). Thus, as it explicitly aims at including adopted children, a national decision on recognition of adoption must not be arbitrary. 12 International obligations on recognition of an adoption may stem from Article 21 of the UN Convention on the Rights of the Child250 (CRC). The Convention is binding on all Member States.251 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 21(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 21(c) CRC). Article 21 CRC is reinforced by the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption252 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. 13

b) Minor children of the sponsor (lit.c). In case the minor child seeking reunification 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(1)(c)). Both terms are not defined in the Directive and require further interpretation. In the EU Member States various concepts of custody prevail.253 However, with regard to the term ‘custody’ – 249

Council doc. 6450/01 of 6 March 2001, p. 7, note 1. 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/3ae6b38f0.html [accessed 20 February 2015]. 251 See http://indicators.ohchr.org/[last accessed 20 February 2015]. 252 Full text in English available at http://www.hcch.net/index_en.php?act=conventions.text&cid=69 [last accessed 27 February 2015]. 253 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_resp_gen_en.htm [last accessded 20 February 2015]. 250

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unlike in the case of the age of majority (second subparagraph of Article 4(1)) – the Directive does not refer to national law. Therefore, when interpreting the term ‘custody’ Member States may not refer to their national law. The concept has its own independent meaning in EU law.254 A comparison of the first and second sentence of Article (4)(1)(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 obviously is 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. 2201/2003.255 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 place of residence.256 Thus, a person does not have sole custody where another person has substantial rights or obligations for codecision 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.257 This also follows from the definition of ‘shared custody’ being 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.258 The term ‘dependent’ has its own independent meaning under EU law.259 Concern- 14 ing the term ‘dependent’ a comparison between the different language versions of the Directive does not bring full clarification. The German version of the Directive translates ‘dependent’ as ‘fu¨r ihren Unterhalt aufkommt’ which implies that the sponsor must secure the child’s livelihood financially.260 The French version requires that a sponsor ‘en a la charge’ which is as vague as the English version. The term ‘dependent’ is well known in the decisions of the European Commission on Human Rights (EComHR) and the jurisprudence of the ECtHR on Article 8 ECHR.261 The EComHR has repeatedly stated that family life under Article 8 ECHR must be characterized by relations which are real and sufficiently close between the members and that these relations may in the case of minor children have the form of financial dependency.262 The Commission stated in this regard: ‘The general principle governing family reunifi254 German Bundesverwaltungsgericht (Federal Administrative Court), judgment of 7 March 2009, case no. 1 C 17/08, Neue Zeitschrift fu¨r Verwaltungsrecht 2010, p. 262, 263. 255 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). 256 See also the definition in Commission Communication, COM(2014) 210 final, p. 5. 257 As established by the German Bundesverwaltungsgericht (Federal Administrative Court), Judgment of 7 March 2009, case no. 1 C 17/08, Neue Zeitschrift fu¨r Verwaltungsrecht 2010, p. 262, 263. 258 Article 2 no. 9 and 11(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). 259 Commission Communication, COM(2014) 210 final, p. 6. 260 The Italian and Spanish versions are similar, Italian: ‘[…] quando quest’ultimo sia titolare dell’affidamento e responsabile del loro mantenimento.’ Spanish: ‘[…] cuando tenga el derecho de custodia y los tenga a su cargo.’ 261 See Russo in: Pettiti/Decaux/Imbert (eds), La Convention Europe ´enne des Droits de l’Homme (Economia, 1999), Article 8 § 1, p. 316. 262 See for instance Commission decision of 15.7.1967, no. 2991/66, Alam and Khan v The United Kingdom, Yearbook (Y.B.) 10, 478, 500; Commission decision of 2.5.1979, no.8244/78, Uppal and Singh v The United Kingdom, Decisions and Reports (DR) 17, p. 149 and DR 20, p. 29; see Storey, ‘The right to family life and immigration case law at Strasbourg’, ICLQ (39), p. 328, 329; Stalford, ‘Concepts of family under EU law – lessons from the ECHR’, IJLP (16) 2002, p. 410, 417.

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cation of children is that they must be de jure and de facto dependent on the applicant.’263 Thus, in the case of Article 4(1)(c) legal dependency alone is not sufficient. Furthermore, the criteria developed by the ECJ in its case law on the Free Movement Directive 2004/38/EC regarding the concept of ‘dependency’ can help to interpret the term.264 However, it should be kept in mind that the ECJ established these criteria in the specific context of the Free Movement Directive 2004/38/EC and in line with its purpose; it is therefore not binding for the interpretation of the Directive, but can serve as guidance.265 According to this case law, dependency of a family member is the result of a factual situation characterised by the fact that legal, financial, emotional or material support for that family member is provided by the sponsor.266 Therefore, Member States must assess in each individual case the extent of economic or physical dependence and the degree of relationship between the sponsor and the family member.267 In order to assess whether the dependence is genuine and stable and has not been brought about with the sole objective of obtaining the right to reunification, Member States may impose particular requirements as to the nature or duration of dependence.268 However, these requirements may not exceed the normal meaning of the wording of Article 4 and thereby deprive that provision of its effectiveness.269 15 The second sentence of Article 4(1)(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.270 In this case Member States may grant entry and residence only if the other person sharing custody has given his or her prior consent. Thus in this case a child has generally no right to family reunification. Granting of family reunification is in the discretion of the Member States.271 According to the explanations of the Commission the second sentence of Article 4(1)(c) shall ensure that the other party’s right to custody is not defeated by family reunification.272 The other person must not necessarily be the other parent, but can be any person sharing custody, like a guardian etc.273 In practice, problems arise in particular where the sponsor or his spouse does not have sole custody and the legislation of the country of origin does not provide for the possibility to transfer custody, or if the person sharing custody cannot be found. The Directive does not contain a specific regulation for handling such situations. In general, if the other person sharing custody does not give his/her consent, the child is not entitled to 263

Commission Proposal, COM(1999) 638 final, p. 15. As suggested by Commission Communication, COM(2014) 210 final, p. 6. 265 The ECJ, in interpreting Article 3(2) of the Free Movement Directive explicitly refers to the advantage conferred on applications submitted by persons who have a relationship with Union citizen, compared with applications for entry and residence of other nationals of third States, see ECJ, Rahman and others, C-83/11, EU:C:2012:519, para 21. 266 See Commission Communication, COM(2014) 210 final, p. 6, in analogy to ECJ, Rahman and others, C-83/11, EU:C:2012:519, paras 18–45; ECJ, CPAS de Courcelles v Lebon, C-316/85, EU:C:1987:302, paras 21–22. 267 ECJ, Rahman and others, C-83/11, EU:C:2012:519, para 23. 268 Commission Communication, COM(2014) 210 final, p. 7. 269 Ibid., with reference to ECJ, Rahman and others, C-83/11, EU:C:2012:519, paras 36–40. 270 Article 2 no. 9 and 11(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). 271 German Bundesverwaltungsgericht (Federal Administrative Court), Judgment of 7 March 2009, case no. 1 C 17/08, Neue Zeitschrift fu¨r Verwaltungsrecht, p. 262, 263. 272 Commission Proposal, COM(1999) 638 final, p. 15. 273 See Council doc. 6450/01 of 6 March 2001, p. 7, note 4. 264

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family reunification according to Article 4(1)(c). However, in such cases of an unresolvable blockage, Member States can determine how to deal with this situation, taking into account the best interests of the child as set out in Article 5(5), the reasons for disagreement and other specific circumstances of the case.274 c) Minor children of the sponsor’s spouse (lit.d). Article 4(1)(d) entitles the minor 16 children of the sponsor’s spouse to family reunification. The conditions that must be fulfilled are identical with those listed in Article 4(1)(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).

3. Condition for integration for minor children (third subparagraph of Article (4)(1)) The third subparagraph of Article 4(1) contains a derogation clause which was 17 inserted by the third proposal COM(2002) 225275 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 16.276 According to the third subparagraph of Article 4(1) 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 18 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 them 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. By contrast, the third proposal contained a standstill clause which was even stricter as it referred to the time of adoption of the Directive (22 September 2003).277 The date was changed with regard to Germany, as the national legislative process on the Residence Act was still on-going at the time of adoption of the Directive.278 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.279 274 Commission Communication, COM(2014) 210 final, p. 5. See also Statement of the Commission following a question of Germany on the consequences of a refusal on the part of one of the parents relating to the first proposal, Council doc. 6450/01 of 6 March 2001, p. 5, note 7. 275 Commission Proposal, COM(2002) 225 final, p. 6. 276 Section 20(2) no. 2 Gesetz u ¨ ber die Einreise und den von Ausla¨ndern im Bundesgebiet of 9 July 1990 (Ausla¨ndergesetz), BGBl. I 1990, p. 1354. 277 Commission Proposal, COM(2002) 225 final, p. 6 and third subparagraph of Article 4(1). 278 Hauschild, Zeitschrift fu ¨ r Ausla¨nderrecht und Ausla¨nderpolitik 2003, p. 266, 270. 279 The German legislator had originally intended to set the age limit at 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 Court (German Federal Constitutional Court (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 years (Section 32(2 German Aufenthaltsgesetz (Residence Act 2004).

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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(1),280 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.281 20 The interpretation of the term ‘condition for integration’ is highly controversial.282 The concept of ‘integration’ is not defined in the Directive due to missing competences of the EU in this field. During the negotiations on the Directive the European Parliament had suggested to insert a definition that family reunification facilitates the integration of third-country nationals by creating socio-cultural stability ‘with due respect for the cultures and traditions’ into recital 4 (then recital 6).283 According to the Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs the suggested wording was to exclude a national policy of assimilation of third-country nationals and the destruction of their national identity.284 The suggested amendment was only partly adopted, since the reference to the definition of integration was not included in recital 4. According to the Commission it contained considerations that went beyond the purpose of the proposed Directive.285 The Lisbon Treaty of 2007 did not solve the problem of an insufficient competence of the EU to regulate integration. The competence given to the EU 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’, is not sufficient as ‘any harmonisation of the laws and regulations of the Member States’ is explicitly excluded (Article 79(4) TFEU). However, it allows for concerted action of the Member States guided by the EU. 21 In 2004, the Council adopted Common Basic Principles for Immigrant Integration Policy in the European Union (hereinafter: CBP), which define integration as ‘a dynamic, two-way process of mutual accommodation by all immigrants and residents of Member States … that shall enable the immigrant to participate in the economic, social, cultural, and political life of the receiving country.’286 The CBP are not legally binding, but they 19

280 Council docs. no. 6912/03 of 28 February 2003, p. 6 and no. 6585/03 of 25 February 2003, p. 4: ‘In relation with this provision, D also suggested adding the following clause as a recital in the Preamble: The possibility of limiting the right to family reunification of children over the age of 12 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. For this reason, Member States may make the right to family reunification of children over the age of 12 conditional upon proof of prerequisites for integration, if at the time of the application the child’s primary residence is not with the sponsor. F, P and S did not support the introduction of this recital.’ 281 ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 75. 282 See on the concept of integration in the jurisprudence of the ECtHR Murphy, ‘The Concept of Integration in the Jurisprudence of the European Court of Human Rights’, EJML (12) 2010, p. 23–43. 283 Opinion of the European Parliament of 6 September 2000 (OJ 2001 C 135/175). 284 Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs, Report on the proposal for a Council directive on the right to family reunification (COM (1999) 638 final) of 17 July 2000, A5-201/ 2000, amendment 4, p. 7. 285 See Commission Proposal, COM(2000) 624 final, p. 3. 286 Council of the European Union, 2618th Council Meeting, Justice and Home Affairs, of 19 November 2004, 14615/04 (Presse 321), no. 1, available at: www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/jha/82745.pdf [last accessed 26 February 2015].

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may be considered as policy guidelines of EU Member States. Principle no. 8 of the CBP provides: ‘The practice of diverse cultures and religions is guaranteed under the Charter of Fundamental Rights and must be safeguarded, unless practices conflict with other inviolable European rights or with national law.’287 Thus an agreement has been reached that cultural identity must be safeguarded, subject, however, to ‘European values’ or national law. The CBP were implemented from 2005–2010 by means of a Common Agenda for Integration288, followed by the European Agenda for Integration289 in 2011, which repeats the definition of integration as contained in the CBP. Furthermore, Article 22 of the Charter on Fundamental Rights of the Union, which is binding on the Member States (with the exception of Poland, the United Kingdom and presumably the Czech Republic), obliges the Member States to respect the diversity of cultures and religions. Thus, the concept of integration may not lead to assimilation in the sense of destructing migrants’ cultural or religious identity. Member States may refuse to grant entry and residence if the condition is not met 22 since the third subparagraph of Article 4(1) explicitly states that Member States may verify that the person meets this requirement ‘before authorising entry and residence’.290 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 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.291 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.292 As an example, language skills may be required before entry.293 Since Article 4(1) 23 entails in principle a right to family reunification for minor children, it is questionable which level of language skills may be required. As the provision was explicitly inserted in order to enable Germany to maintain its pre-existing legislation, the German provision on integration may serve as a bottom-line. Section 32(2) of the German Aufenthaltsgesetz (Residence Act 2005) may be translated as follows: ‘A minor, unmarried child who is 16 years of age or older shall be granted a residence permit if he or she has a command of the German language or if it appears on the basis of the child’s education and way of life to date that he or she will be able to integrate into the way of life which prevails in the Federal Republic of Germany and both parents or the parent possessing the sole right of care and custody hold a residence permit, settlement permit or EU long-term residence permit.’294 The provision is further explained in 287

CBP no. 8. Commission, Common Agenda for Integration, COM(2005) 389 of 1 September 2005, available at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52005DC0389 [last accessed 26 February 2015]. 289 Commission, European Agenda for the Integration of Third-Country Nationals, COM(2011) 455 of 20 July 2011, available at www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/jha/82745.pdf [last accessed 26 February 2015]. 290 Emphasis added. 291 Commission Communication, COM(2014) 210 final, p. 15. 292 Ibid. 293 Langenfeld/Mohsen, Zeitschrift fu ¨ r Ausla¨nderrecht 2003, p. 398, 399. 294 In German: ‘Einem minderja ¨hrigen ledigen Kind, welches das 16. Lebensjahr vollendet hat, ist eine Aufenthaltserlaubnis zu erteilen, wenn es die deutsche Sprache beherrscht oder gewa¨hrleistet erscheint, dass es sich auf Grund seiner bisherigen Ausbildung und Lebensverha¨ltnisse in die Lebensverha¨ltnisse in der Bundesrepublik Deutschland einfu¨gen kann, und beide Eltern oder der allein personensorgeberech288

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instructions of the German Federal Ministry of the Interior.295 According to the instructions the authorities generally consider language skills corresponding to level C1 of the Common European Framework of Reference for Languages (CEFR) to be necessary.296 Proof shall be furnished by means of a certificate of a suitable foreign or national entity.297 Thus a condition of integration may take the form of a language test requiring language skills at level C1 CEFR or an equivalent integration test. 24 The condition may only be required where the child ‘arrives independently from the rest of his/her family’ (third subparagraph of Article 4(1)). This requirement was inserted on the initiative of France.298 ‘Independent arrival’ from the rest of the family may be interpreted in different ways: as a mere factual description of a child’s arrival separate from the rest of his/her family or as a situation in which a child is expected to live in the host country separate from his/her family. Recital 12 explaining the purpose of the age limit speaks of children ‘whose primary residence is not with the sponsor’. This would seem to indicate that the derogation clause is meant to apply only if there is no common residence with the sponsor in addition to a separate arrival. In this case, the third subparagraph of Article 4(1) according to recital 12 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 schools’. 25 However, the derogation clause applies to all cases falling into the scope of application of Article 2(d). Taking into account the integration purpose of the third subparagraph of Article 4(1), the clause can be interpreted as requiring an on-going connection with the rest of his/her family. Independent arrival, therefore, means a separate arrival from the rest of the family which is not limited to the mere time period of the journey. 26 In its judgment of 27 June 2006299 the ECJ decided that the third subparagraph of Article 4(1) is in compliance with Article 8 ECHR. The Court stated: ‘Going beyond those provisions, Article 4(1) of the Directive imposes precise positive obligations, with corresponding clearly defined individual rights, on the Member States, 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. […] The fact that the concept of integration is not defined cannot be interpreted as authorising the Member States to employ that concept in a manner contrary to general principles of Community law, in particular to fundamental rights. The Member States which wish to make use of the derogation 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 in order to examine the specific situation of a child over 12 years of age arriving independently from the rest of his or her family. Consequently, the final subparagraph of Article 4(1) of the Directive cannot be interpreted as authorising the Member States, expressly or impliedly, to adopt implementing provisions that would be contrary to the right to respect for family life.’300

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The Court, however, has taken the opportunity to emphasise that even in those cases in which the Member States retain a right to restrict the right to family reunification granted by Article 4 of the Directive and in which Member States are given a margin of appreciation, the Directive in the light of Article 8 ECHR requires that Member States tigte Elternteil eine Aufenthaltserlaubnis, Niederlassungserlaubnis oder Erlaubnis zum DaueraufenthaltEG besitzen.’ 295 General Instructions to the Residence Act (Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz) of 26.10.2009, GMBl. of 30.10.2009, p. 878–1267. 296 No. 32.2.1. of the General Instructions to the Residence Act. 297 No. 32.2.2. of the General Instructions to the Residence Act. 298 See Council doc. no. 6585/03 of 25 February 2003, p. 4: ‘D maintained a scrutiny reservation concerning the words “and arrives independently from the rest of his/her family”, which have been added following a suggestion from F.’ 299 ECJ, Parliament v Council, C-540/03, EU:C:2006:429. 300 ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 60, 70 et seq.

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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:301 In doing so, the final subparagraph of Article 4(1) of the Directive cannot be regarded as running counter to the right to respect for family life. In the context of a directive imposing precise positive obligations on the Member States, it preserves a limited margin of appreciation for those States which is no different from that accorded to them by the European Court of Human Rights, in its case-law relating to that right, for weighing, in each factual situation, the competing interests.302

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 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.’ Thus, simple practices of the authorities, administrative guidelines or instructions are not sufficient. This requirement shall ensure that the admission of other categories of family members due to its consequences for other Member States is taken by a legislative body of the Member State. Article 4(2) in the English version stipulates that entry and residence may be granted ‘pursuant to this Directive and subject to compliance with the conditions laid down in ChapterIV’.303 The fact that Article 4(2) explicitly mentions ‘Chapter IV’ leads to 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 I-III 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’. No conclusion can be drawn from this wording since the French, Italian and Spanish versions correspond to the English version.304. Therefore, the provision must be interpreted as meaning that the requirements mentioned in Chapter IV must be fulfilled as well as other conditions of the Directive. Family members whose family reunification may be authorized under Article 4(2) therefore do not enjoy exemption of the general conditions of the Directive.305 The Commission also comes to the conclusion 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.306 Under Article 4(2) two groups of relatives may be granted entry and residence: first 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 mother but not grandparents or uncles and aunts.307 Reunification of these family 301

Groenendijk/Fernhout et al., The Family Reunification Directive, p. 9. ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 62. 303 Emphasis added. 304 French: ‘au titre de la pre ´sente directive, sous re´serve du respect des conditions de´finies au chapitre IV’; Italian: ‘In virtu` della presente direttiva e fatto salvo il rispetto delle condizioni stabilite al capo IV […]’; Spanish: ‘[…] de conformidad con la presente Directiva y siempre que se cumplan las condiciones establecidas en el capítulo IV […]’. 305 Ecker, Familienzusammenfu ¨ hrung, p. 77. 306 Commission Communication, COM(2014) 210 final, p. 6. This also applies to the optional provisions in Article 4(3). 307 Commission Proposal, COM(2002) 225 final, p. 6. 302

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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 interpreted in the same manner as in Article 4(1)(c) and (d) meaning legal and factual dependency (see above MN 14). Like in the case of minor children, in the case Slivenko v Latvia the ECtHR has used the element of dependency to decide whether the relationship between a person and the person’s elderly parents can be characterized as ‘family life’ in the sense of Article 8 ECHR.308 32 The requirement of no ‘proper family support’ is fulfilled if no other family members in the country of origin are by law or de facto supporting the person. It should not be regarded as exclusively material and leaves a margin of discretion to Member States as to what level is considered proper support.309 Since the purpose of the provision is to grant family reunification on humanitarian considerations for dependent family members, the question arises 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. The German version does not refer to missing support in the country of origin and interprets the Directive’s conditions as requiring for first-degree relatives in absence of family ties in the country of origin.310 The German version, however, deviates substantially in content from the language versions of other EU Member States. The drafting history does not explain the reasons for the different wording. It is therefore questionable whether the German version can be considered as the correct one in the light of other language versions and the drafting history of the clause. 33 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)). A third requirement is that they must 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, age or sex. The ‘state of health’ must not be serious; a suggestion of Greece to that effect was not included into the Directive; it is not necessary either that the state of health leads to incapacity for work as the Italian delegation had unsuccessfully suggested in the Council.311 Even if a person is capable to work, he or she 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)) 34

The first sentence of Article 4(3) contains an optional provision which allows Member States’ admission of unmarried partners and of registered partners. The category of registered partners was inserted following a Swedish request, as registered 308

ECtHR, Judgment of 9 October 2003, No. 48321/99, Slivenko v Latvia, para 97. Commission Communication, COM(2014) 210 final, p. 7. 310 The German version of Article 4(2)(a) reads: ‘… in ihrem Herkunftsland keinerlei sonstige familiäre Bindungen mehr haben.’ 311 Council doc. 6450/01 of 6 March 2001, p. 8, note 1. 309

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partnerships are a category in their own right in Sweden, with specific characteristics.312 Both must be third-country nationals and the admission must be provided for by law or regulation (see above, MN 28). 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’ indicates 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’ 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)’.313 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.314 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.315 Like in the case of Article 4(2), the conditions laid down in the Directive, especially those laid down in Chapter IV, must be fulfilled (see above, MN 29). 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, MN 33). According to the second subparagraph of Article 4(3) Member States may treat registered partners equally as spouses 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 Term Residents Directive 2003/109/ 312

Council doc. no. 11330/01 of 2 August 2001, p. 2. Council doc. no. 10922/01 of 20 July 2001, p. 3, emphasis added. 314 Council doc. no. 5682/01 of 31 January 2001, p. 7, Article 5 no. 1(a): ‘[…] living in a duly proven durable relationship’, emphasis added. 315 See Council doc. no. 10842/01 of 12 July 2001, p. 2. 313

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EC.316 In contrast, unmarried partners living in a duly attested stable long-term relationship are not covered by the second subparagraph of Article 4(3).

V. Optional admission of persons not mentioned in Article 4 Article 4(2) and (3) provide an option for Member States to grant family reunification to other family member than the nuclear family. Thus, Member States may be free 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.317 42 Article 10(2) allows Member States to authorize entry and residence of all family members of refugees not mentioned in Article 4 provided that they are dependent on the refugee (see below, Article 10 MN 8). 41

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 proposal318 and is mandatory.319 Member States are not allowed to grant family reunification to a further spouse in such an event. As the provision explicitly mentions polygamous marriages only, Article 4(4) only applies to a further female spouse. The case of polyandry is not covered on account of the very small number of such cases.320 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.321 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. 44 The wording requires that the spouse is ‘living’ in a marital relationship 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 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 43

316 Council doc. no. 14272/02 of 26 November 2002, p. 7; Walter, Familienzusammenfu ¨ hrung in Europa, p. 225, note 971. 317 The question whether Article 17 comprises a right to entry and residence will be discussed below, see below Article 17, MN 4. See also above, Article 3, MN 22. 318 Commission Proposal, COM(1999) 638 final, Article 5(2). 319 Ecker, Familienzusammenfu ¨ hrung, p. 83. 320 Council doc. 6450/01 of 6 March 2001, p. 9, note. 1. 321 Commission Proposal, COM(1999) 638 final, explanations on Article 4, p. 15. For example, under German civil law, polygamous marriages are prohibited (Section 1306 German Civil Code BGB).

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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 as long as 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. It is questionable whether ‘living’ with the spouse requires a common habitation. The use of the term ‘household’ in recital 11 speaks for an interpretation which would require more than legal family relationships. However, the term must be interpreted in line with the general tendency to grant protection of family life under Article 8 ECHR also to persons who are not living in a common household but are nevertheless connected in the sense of a common family life. Therefore, a more liberal interpretation includes every relationship which is characterized by a close connection and regular meetings justifying the assumption of a common family life. The legal basis on which a residence permit for the spouse has been issued is irrelevant for the application of the clause. The first subparagraph of Article 4(4) therefore applies irrespective of the type of residence permit and its purpose (humanitarian, employment etc.). By analogy to Article 4(4) Member States may not grant family reunification to an 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 ‘quasi-polygamous 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, MN 38). The children of a further spouse to whom the first subparagraph of Article 4(1) 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.322 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.323 By way of derogation from Article 4(1)(c), according to the second subparagraph of 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.’324 According to the Commission a child’s interest was meant to prevail over other considerations, for instance where the biological mother had died.325 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 20). The best

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COM (1999) 638 final, p. 15, explanations on Article 4. COM (1999) 638 final, p. 15, explanations on Article 4. 324 Art. 5(2) of Commission Proposal, COM(1999) 638 final. 325 Commission Proposal, COM(1999) 638 final, p. 15, explanations on Article 4, emphasis added. 323

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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.326

VII. Minimum age for spouses (Article 4(5)) Article 4(5) stipulates that Member States may on an optional basis require one or both spouses to have a minimum age which may not exceed 21 years. The provision was introduced on a Dutch initiative.327 Unlike other restrictive provisions328, Article 4(5) is not subject to a standstill clause and a number of Member States have made use of this provision.329 Both Austria and the Netherlands maintain a minimum age requirement for spouses of 21 years.330 While Germany and the UK require a spouse to be 18 years of age, Ireland and Portugal have no such requirement.331 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’.332 The Directive itself lacks a clear definition of the term ‘integration’ (see on the interpretation of the term above, Article 4 MN 20 et seqq.). However, Article 4(5) does not require that Member States have to show a real prospect of integration improvement in order to make use of Article 4(5). It is assumed that the introduction of a minimum age serves the purpose of integration as laid down in recitals 4 and 15, and prevents forced marriages. This assumption must be taken as granted until the Directive is amended on the basis of an evaluation report.333 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.334 50 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).335 It argues that by not defining when the minimum age condition must be satisfied, the Directive leaves to the Member States a margin of discretion; prescribing that it must be fulfilled at the time of application does not prevent the exercise of the right to family reunification or render it excessively difficult, nor does it undermine the purpose of preventing forced marriages.336 However, the Commission argues that it is sufficient if this condition is fulfilled at the moment of effective family reunion and not when the application is submitted.337 The purpose of the provision to prevent forced marriages by only allowing 49

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Dienelt, Auswirkungen der Familienzusammenfu¨hrungsrichtlinie auf das AufenthG, p. 70. Schaffrin, in Carlier/De Bruycker (eds), Immigration and Asylum Law of the EU, p. 90, 108. 328 See the third subparagraph of Article 4(1) and Article 4(6) of the Directive. 329 See Labayle/Pascouau, Odysseus Synthesis Report on Directive 2003/86/EC, p. 44. 330 Strik and others, Family Reunification: a barrier or facilitator of integration? A comparative study (Wolf Publishers, 2013), p. 8. 331 Ibid. 332 Emphasis added. 333 See Article 19 of the Directive. 334 See for instance Groenendijk, ZAR 2004, p. 123; Groenendijk, EJML 2006, p. 215, 220; Kingreen, ‘Verfassungsfragen des Ehegatten- und Familiennachzugs im Aufenthaltsrecht’, Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik (2007), p. 13; Hailbronner, Zeitschrift fu¨r das Gesamte Familienrecht 2005, p. 1; Tewocht, Der Schutz von Ehe und Familie im Ausla¨nder- und Asylrecht (Universita¨t Halle-Wittenberg, 2008), p. 20. 335 ECJ, Noorzia, C-388/13, EU:C:2014:2092. 336 Ibid., paras 14, 16. 337 Commission Communication, COM(2014) 210 final, p. 8. 327

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reunification when the spouse reaches an age where she may resist marriage and reunification with her spouse is safeguarded, even when the minimum age is not required at the time of application but only at the time of effective reunification, since the spouse can resist at this later stage. Therefore, based on the margin of discretion mentioned by the ECJ in Noorzia,338 both alternatives can be considered as being in accordance with Article 4(5). Article 4(5) does not explicitly provide for an obligation of Member States to make an 51 exception from a minimum age requirement in case of an exceptional hardship in the interest of children. In other words, it is questionable whether Article 5(5) can lead to the admission of a spouse who does not fulfil a minimum age requirement, where the couple has a common child whose best interest may justify reunification.339 Whether the ECJ’s observations relating to the introduction of an age limit for family reunification of children (Article 4(6)) may be applied by analogy to a minimum age of spouses340 is doubtful. The Court stated that Article 4(6) ‘must […] be read in the light of the principles set out in Article 5 (5) thereof, which requires the Member States to have due regard to the best interests of minor children, and in Article 17, which requires them to take account of a number of factors, one of which is the person’s family relationships.’341 This specific statement is clearly limited to a very specific derogation power laid down in the Directive. However, this does not mean that a similar argumentation cannot be supported in other cases. It has been argued that the Directive in each case requires a case-by-case assessment which excludes systematic rejection.342 The Commission contends that Articles 5(5) and 17 oblige Member States to conduct a case-by-case assessment of all relevant circumstances of the application, and that where such an assessment comes to the conclusion that the goal of ensuring better integration and preventing forced marriages is not applicable, an exception should be considered if there is no abuse.343 The minimum age may therefore not be used as a rigid threshold below which all applications must be systematically refused.344 Thus national law implementing Article 4(5) must be flexible enough to take the considerations mentioned in Article 17 into account (see below interpretation of Article 17 MN 4).

VIII. Age limit of 15 years for minor children (Article 4(6)) The first sentence of Article 4(6) contains a derogation clause which allows Member 52 States to restrict family reunification of minor children to cases where the application has been submitted before they reach the age of 15. The provision was inserted on suggestion of the Greek Presidency of the Council in order to accommodate Austrian concerns which at the time had a corresponding national provision.345 Austria, however, did not make use of Article 4(6). The age limit of 15 years was only applied with respect 338

ECJ, Noorzia, C-388/13, EU:C:2014:2092, para 14. Peers argues that even though it might be argued that the best interest of a child may point against admission of a spouse, there is a strong argument that the best interest of the child points towards growing up in a complete family (referring to Article 24(3) of the EU Charter), Peers/Guild et al, EU Immigration Law, p. 255. 340 Article 4(4) has not been made the subject of the action of Parliament. 341 ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 87. 342 Commission Communication, COM(2014) 210 final, p. 7; AG Sharpston, Chakroun, C-578/08, EU:C:2010:117, para 70. 343 Commission Communication, COM(2014) 210 final, p. 7, 8. 344 Ibid., arguing with an analogy to ECJ, Chakroun, C-578/08, EU:C:2010:117, para 48, where the ECJ states that Article 17 ‘requires individual examination of applications for family reunification.’ 345 Note of the Presidency to the Council, Council doc. no. 6585/03 of 25 February 2003, p. 9, note. 3. 339

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to sponsors who had taken up residence in Austria before 1998 under the Austrian Aliens Act in force until 31 December 2005. Due to the stand-still clause, Article 4(6) has largely lost its practical importance. 53 The provision is subject to a standstill clause according to which the derogation must have been provided for by national legislation at the date of implementation of the Directive on 3 October 2005 (first sentence of Article 20(1)). Therefore the introduction of new limitations is prohibited. The provision, which was originally intended to allow for restrictions, now serves as a security line against Member States’ tendencies to implement sharper restrictions than those mentioned in Article 4(6).346 Only Denmark, which is not bound by the Directive, has introduced an age limit according to Article 4(6) since 7 June 2004.347 54 The second sentence of Article 4(6) contains a derogation from the first sentence of Article 4(6). A Member State making use of a restriction under sentence one ‘shall authorize the entry and residence of such children on grounds other than family reunification.’ The content of sentence two, which seems to imply a binding obligation (‘shall’) is somewhat unclear. The sentence cannot be interpreted as an obligation to grant a residence permit even though the requirements of an age limit applicable under the first sentence of Article 4(6) are not met. The obligatory wording is to prevent an automatic refusal of an application for a residence permit. Member States are obliged to examine whether a residence permit may be granted on other grounds than family reunification to minor children excluded from family reunification on account of the first sentence of Article 4(6). In addition, in exercising the derogation power, Member States must examine whether under the second sentence of Article 4(6), exceptions may be required under human rights considerations. 55 In its judgment of 27 June 2006, the ECJ has held that ‘[i]t does not matter that the final sentence of the contested provision provides that the Member States which decide to apply the derogation are to authorise the entry and residence of children in respect of whom an application is submitted after they have reached 15 years of age ‘on grounds other than family reunification’. The term ‘family reunification’ must be interpreted in the context of the Directive as referring to family reunification in the cases where family reunification is required by the Directive. It cannot be interpreted as prohibiting a Member State which has applied the derogation from authorising the entry and residence of a child in order to enable the child to join his or her parents. Article 4(6) of the Directive must, moreover, be read in the light of the principles set out in Article 5(5) thereof, which requires the Member States to have due regard to the best interests of minor children, and in Article 17, which requires them to take account of a number of factors, one of which is the person’s family relationships. It follows that, while Article 4(6) of the Directive has the effect of authorising a Member State not to apply the general conditions of Article 4(1) of the Directive to applications submitted by minor children over 15 years of age, the Member State is still obliged to examine the application in the interests of the child and with a view to promoting family life.’348

CHAPTER III Submission and examination of the application Article 5 1. Member States shall determine whether, in order to exercise the right to family reunification, an application for entry and residence shall be submitted to the 346 Labayle/Pascouau, Odysseus Synthesis Report on Directive 2003/86/EC, p. 57. According to the Report Article 4(6) was partly implemented in Cyprus, which requires that a child aged over 15 years lives with his parents, p. 57. 347 Labayle/Pascouau, Odysseus Synthesis Report on Directive 2003/86/EC, p. 57. 348 ECJ, Parliament v Council, C-540/03, EU:C:2006:429, paras 86–88.

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competent authorities of the Member State concerned either by the sponsor or by the family member or members. 2. The application shall be accompanied by documentary evidence of the family relationship and of compliance with the conditions laid down in Articles 4 and 6 and, where applicable, Articles 7 and 8, as well as certified copies of family member(s)’ travel documents. If appropriate, in order to obtain evidence that a family relationship exists, Member States may carry out interviews with the sponsor and his/her family members and conduct other investigations that are found to be necessary. When examining an application concerning the unmarried partner of the sponsor, Member States shall consider, as evidence of the family relationship, factors such as a common child, previous cohabitation, registration of the partnership and any other reliable means of proof. 3. The application shall be submitted and examined when the family members are residing outside the territory of the Member State in which the sponsor resides. By way of derogation, a Member State may, in appropriate circumstances, accept an application submitted when the family members are already in its territory. 4. The competent authorities of the Member State shall give the person, who has submitted the application, written notification of the decision as soon as possible and in any event no later than nine months from the date on which the application was lodged. In exceptional circumstances linked to the complexity of the examination of the application, the time limit referred to in the first subparagraph may be extended. Reasons shall be given for the decision rejecting the application. Any consequences of no decision being taken by the end of the period provided for in the first subparagraph shall be determined by the national legislation of the relevant Member State. 5. When examining an application, the Member States shall have due regard to the best interests of minor children. Content I. II. III. IV. V. VI.

General remarks and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The modalities of the application (Article 5(1)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Accompanying evidence (Article 5(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 The principle of applying abroad (Article 5(3)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Duration and form of the decision (Article 5(4)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Best interest of minor children (Article 5(5)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

I. General remarks and drafting history Article 5 governs the procedure for family reunification.349 However, it was never the 1 aim to provide for a full procedural harmonisation.350 Therefore, provision was made only in order to guarantee an effective application of the Directive’s rights. Article 5 was discussed intensely in the Council and repeatedly changed during the 2 negotiations. Member States were primarily concerned with the administrative burdens of the draft directive. The main points of discussion were who may submit an application (Article 5(1)), the principle of applying abroad (Article 5(3)) and the duration of the procedure (Article 5(4)). The Commission’s suggestion for a six months’ 349

Commission Proposal, COM(1999) 638 final, p. 17. See recital 6 which only mentions that the material conditions should be determined on the basis of common criteria, emphasis added. 350

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time limit351 for a decision to take was changed to nine months352 with an extension possibility.353

II. The modalities of the application (Article 5(1)) Article 5(1) defines who can apply for family reunification. The provision stipulates that the Member States shall determine whether, in order to exercise the right to family reunification, an application for entry and residence ‘shall be submitted … either by the sponsor or by the family member or members.’ The formulation ‘either … or’ shows that the Member States have an obligation to ensure that at least one of these persons has the right to apply and that Member States may not oblige both, the family member and the sponsor to file an application cumulatively. The formulation adopted takes into account that national laws may differ on the question of the sponsors’ or family members’ entitlement to submit an application for family reunification.354 By contrast, the Commission’s original proposal only entitled the sponsor to submit an application and was based on the assumption that the sponsor ‘is the right-holder, and he, being resident, will find it easiest to handle the administrative formalities as he will be familiar with the language of the country and the practices of national administrative authorities.’355 4 In spite of the somewhat restrictive wording which seems to exclude that the sponsor as well as the family member have a procedural entitlement to apply for a residence permit, the drafting history and the purpose of the provision support a more liberal interpretation which leaves it to the Member States whether they allow separate or joint applications by the sponsor and/or the family member. A more liberal interpretation is also supported by the argument that procedural provisions must be in line with substantive rights. Although the right to family reunification cannot be exercised against the will of either the sponsor or the family member, both will be affected in their individual rights by a negative decision of the administration.356 5 The Directive does not describe detailed procedural requirements, in particular whether an applicant has to appear before the authorities in person and whether he/ she may be represented in the proceedings. It is also within the exclusive competence of Member States to lay down rules for determining the competent authority to decide on an application for family reunification (embassy, consulate, alien authorities) and the procedural formalities which have to be complied with in filing an application provided that such rules do not unduly restrict an applicant’s rights under the Directive.357 National law may require the participation of alien authorities if an application is submitted at a diplomatic representation abroad. Provided that the procedure does not result in unreasonable delays and/or unproportional administrative difficulties, it is within the national discretion to regulate the details of the administrative procedure and internal participation of different authorities. 3

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Commission Proposal, COM(1999) 638 final, Article 7(3). This time frame was introduced by the third proposal, COM (2002) 225 final, Article 5(4). 353 Commission Proposal, COM(2002) 225 final, p. 7, explanations on Article 5(4). 354 Commission Proposal, COM(2002) 225 final, p. 7, explanations to Article 5(2) of the proposal. The original proposal may have been guided by the Dutch legislation, which provides that applications for family reunification must generally be submitted by the sponsor. Article 5(1) of Directive 2003/86 takes the German legislation into account, see Section 81(1) German Aufenthaltsgesetz (Residence Act). 355 Commission Proposal, COM(1999) 638 final, p. 16. 356 Ecker, Familienzusammenfu ¨ hrung, p. 223, note 669. 357 See third proposal, Commission Proposal, COM(2002) 225 final, p. 7, explanations on Article 5(3). 352

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The Directive does not make provision for administrative fees. Fees are usually 6 required for administrative decisions corresponding to the administrative costs and the value of a decision for the applicant. Nothing in the Directive indicates that family reunification has to be granted without a reasonable charge for the administrative costs incurred. With minor exceptions all EU Member States charge fees for issuing a residence permit for family reunification.358 The Netherlands decreased their fees from approximately 1970 E to 225 E in 2012 after the ECJ had judged accordingly regarding long-term residents.359 Under general principles of law, however, individual rights which require administrative action in order to be effectively exercised may not be made subject to unreasonable charges. Member States are allowed to charge reasonable, proportional fees within their limited margin of appreciation, which is exceeded when the objectives and effectiveness of the Directive is jeopardised by creating an obstacle to the exercise of the right to family reunification.360 The test of reasonableness and proportionality has to be met jointly. Even where a fee may be proportional to high administrative costs, it may be unreasonable where the circumstances of the case would result in an effective denial of such rights. Some Member States have therefore exempted or made special provisions for children and/or persons in need of protection and in particular distressing circumstances,361 as is encouraged by the Commission.362

III. Accompanying evidence (Article 5(2)) Article 5(2) specifies which accompanying evidence may be demanded with an 7 application. Although the inclusion of documentary evidence is prescribed in obligatory terms (‘shall’) it remains within the domain of Member States to prescribe formalities for submitting an application. Thus, Article 5(2) does not exclude exceptions from the requirements laid down. Documentary evidence shall be submitted to proof (1) the family relationship, (2) compliance with the conditions laid down in Articles 4 and 6–8 and (3) travel documents (first subparagraph of Article 5(2)). Travel documents are listed in the table of documents allowing the holder to cross the external borders to which a visa can be attached, annexed to the Decision of the Schengen Executive Committee of 16 December 1998 concerning the Manual of documents to which a visa may be affixed.363 The requirement of documentary evidence of the family relationship is further 8 specified in the second and third subparagraph of Article 5(2). The second subparagraph allows for Member States to carry out interviews with the sponsor and/or his/her family member in order to verify that a family relationship exists, provided it is ‘appropriate’. If it is obvious that the interview will not lead to any further information, or if a family relationship can be proven by other, less demanding means, the authority may not carry out an interview. The second subparagraph of Article 5(2) also allows for 358 In 2006, the fees ranged in the area of 35 E up to 150 E, in special cases up to 1,616 E. For a survey see Groenendijk/Fernhout et al., The Family Reunification Directive, p. 48; Labayle/Pascouau, Odysseus Synthesis Report on Directive 2003/86/EC, p. 180 et seq. 359 ECJ, Commission v Netherlands, C-508/10_0 of 19 January 2012. See de Hart and others, Family Reunification Country Report of the Netherlands, p. 10. 360 Commission Communication, COM(2014) 210 final, p. 9, draws an analogy to ECJ, Commission v Netherlands, C-508/10, EU:C:2012:243, paras 62, 64–65. 361 Groenendijk/Fernhout et al., The Family Reunification Directive, p. 48. 362 Commission Communication, COM(2014) 210 final, p. 9. 363 The Schengen acquis – Decision of the Executive Committee of 16 December 1998 concerning the compilation of a manual of documents to which a visa may be affixed (SCH/Com-ex (98) 56), OJ 2000 L239/207, referred to in Commission Proposal, COM(2002) 225 final, p. 7, explanation on Article 5(2).

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the authorities ‘to conduct other investigations that are found to be necessary’. Another investigation might be for example DNA testing or interviews with other persons. The term ‘may’ implies that the national administration has a margin of appreciation to decide which evidence is required. However, under the requirement of necessity an investigation is inadmissible if there are other suitable and less restrictive means to examine whether a family relationship exists. Therefore, a case-by-case approach must be followed. An administrative practice which requires DNA tests in all cases of family reunification of minor children is not permissible under the Directive.364 The decision whether an investigation is necessary is subject to judicial examination. 9 Concerning unmarried partners, the third subparagraph of Article 5(2) establishes that ‘Member States shall considerer as evidence of the family relationship, factors such as a common child, previous cohabitation, registration of the partnership and any other reliable means of proof.’365 Other reliable means of proof are any means that show the stable and long-term character of the relationship as required by Article 4(3). These may be correspondence, joint bills, bank accounts or ownership or real estate, etc.366 10 With regard to the material conditions laid down in Articles 4 and 6–8, the first subparagraph of Article 5(2) also provides that the applicant must furnish ‘documentary evidence’. Therefore certificates and other documents must be submitted. Other than for the requirement of demonstrating the existence of family relationship (cf. second subparagraph of Article 5(2)), the Directive does not prescribe that the existence of the conditions laid down in Articles 4 and 6–8 may be proven by other means of proof such as interviews. However, it is in line with the general purpose of Article 5(2) (see above MN 1) to admit other less restrictive means to prove such requirements, for example by means of an interview.

IV. The principle of applying abroad (Article 5(3)) The first subparagraph of Article 5(3) establishes the principle that the application must generally be submitted to and examined by the authority which is competent under national law while the family members are residing outside the territory of the Member State in which the sponsor resides.367 The requirement shall ensure that all the conditions for a residence permit are met before entry in order to avoid illegal entry and stay. 12 Article 5(3) reflects the general practice of Member States to examine abroad whether the conditions for family reunification with a third-country national already residing in the territory of the concerned state are met. All EU Member States with few exceptions require applications to be submitted before entry.368 The provision acknowledges that Member States are in general – subject to the second subparagraph of Article 5(3) – entitled to refuse the examination of an application of family reunification unless it is filed at a diplomatic representation abroad. The provision does not contain rules pertaining to the formal requirements of the application, in particular whether an applicant must be present in the country of ordinary residence or appear in person at a diplomatic representation in order to apply for a visa. 11

364 Concerning DNA testing in general see in detail Thomas, ‘Biometrics, International Migrants and Human Rights’, EJML (7) 2005, p. 377–411 and Heinemann/Naue/Tapaninen, ‘Verifying the Family? A Comparison of DNA Analysis for Family Reunification in Three European Countries’, EJML 15.2 (2013), P. 183–202. 365 Emphasis added. 366 Commission Communication, COM(2014) 210 final, p. 9. 367 Third proposal, Commission Proposal, COM(2002) 225 final, p. 7, explanations on Article 5(2). 368 Labayle/Pascouau, Odysseus Synthesis Report on Directive 2003/86/EC, p. 76 et seq.

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Although the Directive generally deals with issuing a residence permit for a family 13 member residing abroad for the purpose of family reunification in its territory369 it can also be applied when ‘a family enters together’ (recital 7). The Directive does not contain rules on derogation from the normal requirements in this case, although it may appear evident that some of the requirements, for instance a (optional) requirement of lawful stay of the sponsor (cf. Article 3(1) and Article 8(1)) will not be applicable under these circumstances. It follows that Member States are not obliged to grant exceptions from the general requirements, especially the principle of applying abroad, in case of a family entering together. The second subparagraph of Article 5(3) allows for Member States (‘may’) in appro- 14 priate circumstances to derogate from the obligation to submit an application abroad when family members are already in the territory of a Member State in which a residence permit is sought. In the first two proposals the acceptance of applications in the Member State was limited to ‘exceptional circumstances or on humanitarian grounds’.370 According to the Commission such humanitarian considerations prevailed for example where a child who has a single parent – the applicant – cannot be returned to the country of origin.371 The provision was extended on request of Belgium and Germany. Both countries had criticised the limitation as too strict in cases where the family member is already in the Member State.372 The second subparagraph of Article 5(3) as adopted grants the Member States more flexibility.373 However, previous draft provisions contained an obligation to accept applications in the Member States under the conditions laid down in the Directive, whereas the second subparagraph of Article 5(3) contains an option to accept such applications subject to the discretion of the Member States.374 The term ‘in appropriate circumstances’ clarifies that a Member State may derogate from the principle of the first subparagraph of Article 5(3) only if there are particular circumstances justifying such a derogation. The test of ‘appropriate circumstances’, however, does not indicate a high threshold.375 The Commission report implies that the possibility to always permit in-country applications is ruled out by this provision.376 ‘Appropriateness’ entails a large scope of discretion for Member States.377 Any reasonable consideration to accept an application will be sufficient to justify derogation, which may be given for example in the case of new-born children, for third-country nationals who are exempted from a visa or for humanitarian reasons.378 Further examples may include the change of a residence permit of a person who already resides lawfully in the territory of a Member State379 or – in case of illegal entry – if on balance 369

See Article 2(d) of the Directive. Commission Proposal, COM(1999) 638 final, p. 27, Article 7(2). 371 Commission Proposal, COM(1999) 638 final, p. 17. 372 Council doc. no. 7612/01 of 29 and 30 March 2001 on the second proposal Commission Proposal, COM(2000) 624 final, p. 9, note 3: ‘B and D entered reservations on paragraph 2, insofar as family members already present in the territory of a Member States are allowed to submit an application only in exceptional circumstances or for humanitarian grounds.’ 373 See Commission Proposal, COM(2002) 225 final, p. 7, explanations on Article 5(3). 374 See Commission Proposal, COM(2002) 225 final, p. 7, explanations on Article 5(3). 375 See Commission Proposal, COM(2002) 225 final, p. 7, explanations on Article 5(3). 376 Commission Report, COM(2008) 610 final, complains that ‘Five Member States… impede this provision as they do not even enact the primary rule of family members having to reside outside their territory.’ p. 9. However, Peers argues argues that the term should not be interpreted to rule out the possibility to always permitting in-country applications, since this would hinder family reunification, see Peers/Guild et al, EU Immigration Law, p. 258. 377 See Commission Proposal, COM(2002) 225 final, p. 7, explanations on Article 5(3). 378 Commission Communication, COM(2014) 210 final, p. 8, see fn. 81 for more examples of ‘appropriate circumstances’. 379 Commission Proposal, COM(2002) 225 final, p. 7, explanations on Article 5(3). 370

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of interests the conclusion must be drawn that enforcement of return and an obligation to submit the application abroad for family reunification would amount to an unreasonable burden to the applicant. In the practice of EU Member States, derogations are frequently made in the following cases: for new-born children under the age of six months, aliens who may enter the territory without a visa, in the case of former EU citizens or nationals who have lost their citizenship, for aliens applying for a special type of residence permit (researcher etc.), and if special circumstances render a subsequent visa procedure unreasonable.380 15 Under specific conditions derogation from the principle of application abroad may be required on human rights grounds as incorporated into the Directive in Article 5(5) and Article 17.381 In particular, the best interest of the child (Article 5(5), see below MN 20) may require the acceptance of the application in the Member State.

V. Duration and form of the decision (Article 5(4)) The first subparagraph of Article 5(4) obliges Member States to give written notification of the decision on an application ‘as soon as possible’. The provision corresponds with the second sentence of recital 13, which states that the procedures ‘should be effective and manageable, taking account of the normal workload of the Member States’ administrations, as well as transparent and fair, in order to offer appropriate legal certainty to those concerned’.382 This means that under normal workload circumstances, a standard application should be processed promptly without unnecessary delay. A longer period may be justified where the administrative workload is high or the application needs further examination, but it may never exceed the maximum time limit of nine months set by the first subparagraph of Article 5(4). This period starts from the date of submission of the application, not the moment of notification of receipt of the application by the Member State.383 17 According the second subparagraph of Article 5(4) the time limit may be extended ‘in exceptional circumstances linked to the complexity of the examination of the application’. Therefore administrative capacity shortages as such may not justify the extension of the nine months time limit, only the particular complexity of the application can. When deciding upon an extension of the deadline, it must be taken into account that there is already an obligation to decide as soon as possible, and that the nine-months limit has been set up as a maximum. The relevant authority must demonstrate that the exceptional complexity of a particular case amounts to exceptional circumstances.384 There is no final deadline in this case, but it should be kept to a strict minimum necessary to reach the decision.385 18 If no decision is taken by the end of the nine-month period, the third subparagraph of Article 5(4) stipulates that any consequences shall be determined by the national legislation of the relevant Member States. The Directive does not provide for an obligatory implicit approval in the case of an administrative failure to decide. Therefore, 16

380 For a description of state practice see Groenendijk/Fernhout et al., The Family Reunification Directive, p. 49. 381 For an obligation to make an exception under art. 8 ECHR see Austrian Constitutional Court of 18.10.2003, case no. C 119/120/03 and Austrian Administrative Court of 26.6.2006, case no. 2006/18/ 0158; see Groenendijk/Fernhout et al., The Family Reunification Directive, p. 49. 382 Emphasis added. 383 Commission Communication, COM(2014) 210 final, p. 10. 384 Commission Communication, COM(2014) 210 final, p. 10, with examples of such exceptional complexity. 385 Ibid.

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it is within the Member State’s responsibility to ensure an effective procedure in such cases.386 National legislation may provide for an automatic acceptance of an application or for a possibility to challenge the failure to decide before a national court. Effectiveness means that there must be an effective possibility of enforcement. Thus, in the absence of administrative complaint procedures granting relief, judicial procedures must be available to challenge an administrative failure to decide upon an application effectively. Notification of the administrative decision must be in writing (first subparagraph of 19 Article 5(4)). In addition, the third subparagraph of Article 5(4) provides that reasons shall be given for a negative decision. The (written) reasons must expose the legal and factual basis for rejecting the application. The applicant must be able to determine whether the decision is based upon correct factual findings and proper legal considerations in order to effectively exercise his/her right of legal challenge under Article 18.

VI. Best interest of minor children (Article 5(5)) Article 5(5) obliges Member States to take into account the best interests of minor 20 children. It must be taken into account when interpreting any provisions of the Directive.387 The Directive does not contain any provision on or definition of best interest of minor children. The clause is usually transposed by Member States by way of a repetition although in some cases a reference to the UN Convention on the Rights of the Child is considered as sufficient. Frequently, national legislation refers to the ‘child’s well-being and the family’s situation which have to be taken into consideration’.388 The UN Convention on the Rights of the Child of 20 November 1989389 does not contain a specific obligation to grant a residence permit for the purpose of family reunification. The Convention, however, in general terms, obliges state parties to ensure the child such protection as is necessary for his/her well-being, taking into account the rights and duties of his/her parents, legal guardians or other individuals legally responsible for him/her, and, to this end, to take all appropriate legislative and administrative measures.390 From this follows that state parties shall ensure that a child shall not be separated from his/her parents against their will, except when competent authorities subject to judicial review determine in accordance with applicable law and procedures that such separation is necessary for the best interests of the child. Under Article 10 of the Convention applications by a child or his/her parents to enter or leave a state party for the purpose of family reunification shall be dealt with by states parties in a positive, humane and expeditious manner. States shall ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the member of their family.

386

See recital 13. The ECJ, for example, interpreted Article 4(6) in the light of Article 5(5) and also verified the decision upon the challenged application to that regard, ECJ, Parliament v Council, C-540/03, EU:C:2006:429, paras 84–90. 388 See Groenendijk/Fernhout et al., The Family Reunification Directive, p. 54. 389 The Convention entered into force on 2 September 1990, see Perruchoud/Tomolova `, Compendium of international migration law instruments, p. 78. 390 See Article 3(2) of the Convention. 387

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CHAPTER IV Requirements for the exercise of the right to family reunification Article 6 1. The Member States may reject an application for entry and residence of family members on grounds of public policy, public security or public health. 2. Member States may withdraw or refuse to renew a family member’s residence permit on grounds of public policy or public security or public health. When taking the relevant decision, the Member State shall consider, besides Article 17, the severity or type of offence against public policy or public security committed by the family member, or the dangers that are emanating from such person. 3. Renewal of the residence permit may not be withheld and removal from the territory may not be ordered by the competent authority of the Member State concerned on the sole ground of illness or disability suffered after the issue of the residence permit. Content I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Public policy, security and health. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3

I. General remarks 1

Article 6 provides for restrictions of family reunification on grounds of public order, security and health corresponding largely to public order clauses of fundamental freedoms391 and other directives on migration issues.392 The terms of ‘public order’ and ‘security’, being by their very nature vague, leave scope for national interpretations.393 Attempts to clarify these terms have been rejected by Council.394

II. Drafting history 2

During the negotiations the provision was changed several times. The Commission originally suggested a paragraph according to which ‘(T)[t]he grounds of public policy or domestic security must be based exclusively on the personal conduct of the family member concerned.’395 This restriction was deleted during the final negotiations in the 391 Freedom of movement of workers (see Article 45(3) TFEU); free movement of goods (Article 36 TFEU), the as well as the right of establishment (Article 52(1) TFEU), Article 65(1)(b) TFEU. Furthermore, Title V TFEU contains a reservation in its Article 72 TFEU concerning ‘maintenance of law and order and the safeguarding of internal security’. 392 Long Term Residents Directive 2003/109/EC; Article 6; Free Movement Directive 2004/38/EC, Articles 27–33; Students Directive 2004/114/EC, Article 16(2); Researchers’ Directive 2005/71/EC, Article 13(2). 393 Brechmann, in: Calliess/Ruffert (eds), EUV/AEUV (Beck, 2011), Art. 45 AEUV MN 96; SchmidDru¨ner, Der Begriff der o¨ffentlichen Sicherheit und Ordnung im Einwanderungsrecht ausgewa¨hlter EUMitgliedstaaten (Nomos, 2007), p. 395 et seq. 394 See Council doc. 13968/02 of 12 November 2012, p. 11: ‘[…] the Council Legal Service recalled its position that introducing a list of specific conducts, as proposed by D, might have the effect of narrowing the scope of this provision.’ 395 Commission Proposal, COM(1999) 638 final, p. 28, Article 8(2); see also Boeles, ‘Directive on Family Reunification: Are the Dilemmas Resolved?’, EJML (3) 2001, p. 61, 63.

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Council.396 In addition, the material scope of application of Article 6(1) was clarified. According to the original proposal ‘the entry and residence’ could be denied,397 Article 6(1) now provides that ‘the application for entry and residence’ may be rejected and Article 6(2) speaks of withdrawal or refusal to renew a residence permit. The final negotiations brought more changes: in Article 6(1) and (2) the words ‘domestic security’398 were replaced by the words ‘public security’.399 More importantly, the second subparagraph of Article 6(2) was inserted which contains special aspects that must be taken into account when a decision is made.

III. Public policy, security and health Article 6(1) allows Member States to reject a family member’s application for entry 3 and residence on grounds of public policy, public security or public health. On the same grounds Member States may withdraw or refuse to renew a family member’s residence permit (Article 6(2)). Article 6(1) and (2) are optional provisions (‘may’). Article 6 therefore only specifies the minimum conditions which a national competence norm must fulfil.400 As a general rule, when a residence permit has been granted or renewed although the competent authority was aware of the grounds, this reason may not be invoked as a ground for withdrawal or refusal to prolong a residence permit.401 The terms ‘public policy’ and ‘public security’ are explained by recital 14 which 4 stipulates that ‘the person who wishes to be granted family reunification should not constitute a threat to public policy or public security’ (second sentence of recital 14). The notion of ‘public policy’ ‘may cover a conviction for committing a serious crime’ (third sentence of recital 14). The notions of ‘public policy’ and ‘public security’ may also cover cases in which a third-country national ‘belongs to an association which supports terrorism, supports such an association or has extremist aspirations’ (fourth sentence of recital 14). The third sentence of recital 14 indicates that if a national measure is based on a serious crime only, a conviction is necessary. The word ‘may’ in this sentence also implies that a conviction for a serious crime is only one possible case covered by the ‘public policy’ reservation and not a conditio sine qua non.402 This interpretation is supported by the fourth sentence of recital 14 which explicitly considers belonging to a terrorist association as sufficient.403 In line with these specifications, in several Member States membership of an organisation which has ‘anti-constitutional’ elements or ‘extreme ideas’ or which supports terrorism’ are grounds for refusal.404 It is questionable whether the term ‘public security’ also covers a threat to international 5 relations. The drafting history on this point is contradictory. In favour of a wide interpretation the first drafts on the Directive mentioned ‘domestic security’, whereas in 396

See still Commission Proposal, COM(2002) 225 final, Article 6 (3). Commission Proposal, COM(1999) 638 final, Article 8(1). 398 Emphasis added. See still: Commission Proposal, COM(2002) 225 final, Article 6 (1) and (2). 399 Emphasis added. 400 Dienelt, ‘Der ordre public-Vorbehalt in der Familienzusammenfu ¨ hrungsrichtlinie’, Informationsbrief Ausla¨nderrecht (2005), p. 445, 446; Schmid-Dru¨ner, Der Begriff der o¨ffentlichen Sicherheit und Ordnung im Einwanderungsrecht ausgewa¨hlter EU-Mitgliedstaaten (Nomos, 2007), p. 397. 401 See Hailbronner, Asyl- und Ausla ¨ nderrecht (Kohlhammer 2013), p. 93 MN 253 et seq. 402 Oosterom-Staples, in: Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice?, p. 451, 482. 403 Oosterom-Staples, in: Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice?, p. 451, 482 with reference to the term ‘may’ and to the fourth sentence of recital 14. 404 Groenendijk/Fernhout et al., The Family Reunification Directive, p. 28 for Austria, Belgium, Germany and Latvia. 397

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Article 6 the term ‘public security’ is used. Furthermore, the public policy reservation for the free movement of goods has been interpreted by the ECJ in a wider sense covering both a Member State’s domestic as well as the external security.405 This led to the assumption that ‘public security’ in Article 6 is broader and covers a Member State’s domestic as well as its external security.406 However, the Council documents do not provide information as to why the term ‘domestic security’ was replaced by ‘public security’. During the final negotiations in the Council the Council Legal Service had clarified upon request that ‘the notion of threat to international relations is not covered by the general category of public security.’407 Austria wanted to confirm that the notion of public security is not limited to domestic security but ‘also covers the relations of a Member State with the third country concerned.’408 A corresponding suggestion of Germany and Austria was apparently not introduced into the Directive. The Council’s Legal Service was concerned that such a provision might conflict with Article 8 and 14 ECHR.409 Furthermore, the fact that in the course of implementation of the Directive Finland deleted a national provision which stipulated a ‘danger to international relations’ as a ground for refusal410 seems to indicate that the notion of ‘public security’ does not cover a threat to international relations. 6 The first sentence of recital 14, which requires ‘duly justified grounds’ provides only scarce assistance for interpretation of the term ‘threat to public policy and public security’. It is basically left to the Member States to apply within a margin of appreciation the standards in line with the general principle of proportionality and of Article 17.411 7 Whether recourse may be taken to the principles developed by the ECJ for the interpretation of the terms ‘public order’ and ‘public policy’ in Article 27 of the Free Movement Directive 2004/38/EC is doubtful.412 The formulation of Article 6 as well as the drafting history suggest a different interpretation.413 The public order and securityclause in Article 27 of the Free Movement Directive 2004/38/EC – following the ECJ’s jurisprudence on restrictions of the fundamental right of free movement of Union citizens414 has been very tightly restricted by the requirement that a measure of public order ‘shall comply with the principle of proportionality’ and shall be based ‘exclusively on the personal conduct of the individual’ which shall represent a genuine, present and sufficiently serious threat affecting the fundamental interests of the society.415 Previous criminal convictions, therefore, shall not in themselves constitute grounds for taking such measures. One may argue that the term ‘threat’ does at least imply an element of continuing danger emanating from a person. 405 ECJ, Richardt, C-367/89, EU:C:1991:376, para 22 concerning the public policy exclusion on the free movement of goods regulated in Article 36 TEC. 406 Brinkmann, ‘Family Reunion, Third Country Nationals and the Community’s New Powers’, in: Guild/Harlow (eds), Implementing Amsterdam (Hart, 2001), p. 241, 259. 407 Council doc. 14272/02 of 26 November 2002, p. 11, note 2, emphasis added. 408 Council doc. 13968/02 of 12 November 2002, p. 11, note 1. 409 Council doc. 5508/03 of 23 January 2003, p. 11, note 1. 410 Groenendijk/Fernhout et al., The Family Reunification Directive, p. 29. 411 Commission Report, COM(2008) 610 final, p. 8. 412 See Peers, EU Justice and Home Affairs Law, p. 467 arguing for equal treatment. 413 See also Boeles/den Heijer et al., European Migration Law, p. 197; Hailbronner, Zeitschrift fu ¨ r das Gesamte Familienrecht 2005, p. 1, 4. 414 ECJ, Van Duyn, 41/74, EU:C:1974:133, para 24; ECJ, Rutili, 36/75, EU:C:1975:137, para 28; ECJ, Bouchereau, 30/77, EU:C:1977:172, para 35; ECJ, Orfanopoulos and Oliveri, joined cases C-482/01 and C493/01, EU:C:2004:262, para 66. 415 See ECJ, Bouchereau, 30/77, EU:C:1977:172, para 35: ‘In so far as it may justify certain restrictions on the free movement of persons subject to Community law, recourse by a national authority to the concept of public policy presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society.’

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This conclusion, however, is not confirmed if one looks at the drafting history. The first 8 Commission draft stated: ‘The grounds of public policy or domestic security must be based exclusively on the personal conduct of the family member concerned.’416 The Commission explained that this criterion was similar to the one used in Community law and even explicitly referred to the Directive 64/221/EEC on the co-ordination of special measures concerning the movement and residence of foreign nationals.417 The clause was deleted on recommendation of the Committee for Internal Market and Rights which justified the request with the aim of reaching ‘consistency with Member State’ legislation on public security and policy.’418 The drafting history suggests that measures under Article 6 may be based on reasons other than the merely personal conduct. This interpretation is supported by Article 6(2) which mentions the ‘dangers … emanating from such person’ only as one aspect that needs to be taken into consideration.419 Furthermore, the Council, when adopting Directive 2003/86/EC, expressed its intention that content and scope of Article 6 should be without prejudice to similar clauses in other Directives.420 However, the Commission argues that the case law on the Free Movement Directive 2004/38/EC may, mutatis mutandis, serve as background for national interpretations.421 The practice of Member States on the implementation of the Directive into national 9 law confirms the Commission’s conclusion in the Evaluation Report of 2008422 that it is largely left to the Member States and to the case law of the courts to set the standards. In summary, most Member States grant Union citizens a more privileged status with regard to protection against refusal of granting, renewing or against withdrawing a residence permit for the purpose of family reunification based upon public order or public policy reasons.423 The distinction within Article 6 between rejection of an application for entry and 10 residence of family members (Article 6(1)) and withdrawal or refusal to renew a family member’s residence permit (Article 6(2)) raises questions of interpretation. Although in both cases the same standard of public policy, public security or public health is applicable, Article 6(2) contains additional requirements to consider ‘when taking the relevant decision’: i. e. ‘besides Article 17 the severity or type or offence against public policy or public security committed by the family member, or the dangers that are emanating from such person’. The systematic context of Article 6 excludes the assumption that the second subparagraph of Article 6(2) applies as well to a decision rejecting an application for family reunification mentioned in Article 6(1).424 ‘The relevant 416 Commission Proposal, COM(1999) 638 final, Article 8(2) and Commission Proposal, COM(2002) 225 final, Article 6(3). 417 Commission Proposal, COM(1999) 638 final, p. 17. 418 Opinion of 28 January 2003 of the Committee on legal affairs and the internal market for the Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs, included in the Report of the Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs on the amended proposal for a Council directive on the right to family reunification, European Parliament Session document, A5-0086/ 2003 final of 24 March 2003, p. 48. 419 Hailbronner, Zeitschrift fu ¨ r das Gesamte Familienrecht 2005, p. 1, 4. 420 Council doc. 12773/03 ADD 1 of 23 October 2003, Addendum to draft minutes, 2525th meeting of the Council (Competitiveness), held in Brussels on 22 September 2003, p. 3: ‘The Council considers that the content and the scope of Article 6 of this Directive are without prejudice to the content and scope of similar clauses on public policy and public security contained in other Community Directives in the area of legal immigration which are currently being considered or which will be considered by the Council bodies.’ 421 Commission Communication, COM(2014) 210 final, p. 11 note 37 with reference to case law referred to in Commission Communication, COM(2009) 313 final, p. 10–14. 422 Commission Report, COM(2008) 610 final, p. 14. 423 Groenendijk/Fernhout et al., The Family Reunification Directive, p. 29. 424 Hauschild, Zeitschrift fu ¨ r Ausla¨nderrecht und Ausla¨nderpolitik 2003, p. 266, 271. For a reference to para 1 Oosterom-Staples, in: Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice?, p. 451, 482.

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decision’ mentioned in Article 6(2), therefore, refers only to the withdrawal and refusal to renew a residence permit. The second subparagraph of Article 6(2) was inserted during the final negotiations in the Council without a specific explanation.425 The introduction of the clause into the provision was obviously based upon the assumption that typically the withdrawal or refusal of renewal residence permits is based upon offences against public policy or public security, committed by a family member, while decisions rejecting an application for entry and residence – in the absence of reliable information on an applicant’s criminal record in the home country – are usually based upon non-fulfilment of other criteria as are laid down in Article 7. 11 The focus upon the additional sentence in the second subparagraph of Article 6(2) seems to lose weight in the light of the general principle of proportionality and the explicit general application of the principles laid down in Article 17 for both categories of decisions.426 It is doubtful, however, whether the principle of proportionality applicable to infringements of individual rights requires equal standards of examination with regard to a decision to reject an application for family reunification and with regard to decisions to withdraw or not to renew a residence permit granted for that purpose. The Family Reunification Directive does create individual rights to family reunion, but does not presuppose such rights. The reference in the Preamble to the fundamental rights and principles recognised in Article 8 ECHR and in recital 2 CFR does not imply that irrespective of Article 8 ECHR Member States are in principle obliged to grant persons intending to establish a family relationship a right of residence on their territory. 12 The ECtHR has always maintained that the obligation to protect family life under Article 8 ECHR is based on the sovereign right of Member States to control the entry of non-nationals into their territory.427 Therefore, Article 8 ECHR has consistently been interpreted restrictively when used to support a claim for entry and residence of the family for the purpose of reunification since the Convention does not contain a right to respect a family’s decision to establish a common family life in the country of choice.428 Thus, different requirements may apply with regard to intervening into an existing family relationship based upon a common residence by terminating a person’s residence right rather than protecting the individual decision to establish such a family relationship by common residence. Therefore, Article 8 ECHR does not require equal standards. 13 Whether in the case of an application for family reunification the principle of proportionality requires a balancing of dangers emanating from past criminal activities of an applicant either in the country of origin or in the country of residence must, therefore, be answered in a differentiated manner. An intrusion into the right of family reunification may only be assumed under exceptional circumstances in which the ECtHR assumes that a right to be granted a residence permit for the purpose of family reunification may be deduced from Article 8 ECHR as the only alternative to realise effectively the fundamental right of living together in a family. A conviction of committing a serious crime may therefore be considered sufficient ground for refusing the residence permit of family reunification irrespective of a present individual danger for the public order in the country of destination. 425

See Council doc. 14272/02 of 26 November 2002, p. 11 where the clause appears for the first time. Groenendijk, ‘Family Reunification as a Right under Community Law’, EJML 2006, p. 215, 218. 427 Martin, ‘Comments on N. v. Inspecteur van de Belastingdienst Oost/kantoor Almelo (Case C-470/ 04 of 7 September 2006), European Parliament v. Council(Case C-540/03 of 27 June 2006) and TasHagen and Tas (Case C-192/05 of 26 October 2006)’ EJML 9 (2007), p. 141, 149 in a critical comment on the judgment ECJ, Parliament v Council, C-540/03 EU:C:2006:429. 428 See ECtHR, Judgment of 21 December 2001, No. 31465/96, Sen v The Netherlands, para 41; ECtHR, Judgment of 31 January 2006, No. 50435/99, Rodrigues da Silva and Hoogkamer v The Netherlands, para 38. 426

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A particular issue is dealt with in the fourth sentence of recital 14 of the Directive. The provision mentions the case of a threat to public policy and public security by terrorist affiliation. The notion of threat to public policy is to cover ‘also cases in which a third country national belongs to an association which supports terrorism, supports such an association or has extremist aspirations.’ The exception clause seems to be largely in line with the recent legislation of most EU Member States. The wording suggests that there must be some personal involvement. ‘Support’ as well as ‘extremist aspirations’ indicate a knowledge of terrorist aims and the intention to pursue such aims while mere membership does not necessarily imply active assistance to terrorist activities. Therefore, the systematic context would seem to support a restrictive interpretation of ‘belonging’ to an organisation. For Union citizens the ECJ already in 1974 has decided in the Van Duyn case […] that present association, which reflects participation in the activities of the body or of the organization as well as identification with its aims and its designs, may be considered a voluntary act of the person concerned and, consequently, as part of his personal conduct.429 Undoubtedly, the same considerations apply with regard to third-country nationals, although it is open to question whether in light of the drafting history of the provision the same strict requirements would apply with regard to the requirement of ‘personal conduct’. Although attachment to a terrorist organisation cannot be fully equated to the commission of offences against the public order, explicitly dealt with in Article 6(2) in the case of terminating a person’s residence, there are certain parallels in balancing the respective interests. This would seem to support a distinction as to the rejection of a grant for family reunification and withdrawal or refusal to renew a residence permit. State practice also seems to head into that direction by granting a considerably larger scope of discretion in the decision on admission of persons suspected of affiliation to terrorist organisations while stricter requirements are imposed on terminating a person’s lawful residence on the basis of membership in an organisation pursuing terrorist aims. Finally, Article 6(3) deals with public health requirements. Once again the provision distinguishes between renewal of a residence permit and the rejection of a residence permit for the purpose of family reunification. Article 6(3) specifically excludes to use as ‘sole ground’ for withholding renewal of a residence permit or ordering removal from the territory ‘illness or disability suffered after the issuance of the residence permit’.430 By argumentum e contrario illness or disability may be used as the sole ground for rejecting an application for a residence permit for the purpose of family reunification unless prohibited on other grounds, such as the principle of proportionality. It is not clear why Article 6(3) speaks only of renewal of the residence permit and removal from the territory while Article 6(2) mentions, in addition, the term withdrawal. The functional similarity of both types of decisions indicates rather an editorial negligence than a deliberate distinction, particularly since removal from the territory is also mentioned in Article 6(3), while Article 6(2) does not mention removal. Since both types of decisions, withdrawal as well as refusal to renew, amount to a termination of lawful residence, no convincing argument can be put forward to explain a different treatment. Therefore Article 6(3) may be interpreted as including withdrawal of the residence permit as well.

429 ECJ, Van Duyn v Home Office, 41/74, EU:C:1974:133, emphasis added, para 17; Schmid-Dru ¨ ner, Der Begriff der o¨ffentlichen Sicherheit und Ordnung im Einwanderungsrecht ausgewa¨hlter EU-Mitgliedstaaten (Nomos, 2007), p. 401. 430 Commission Proposal, COM(1999) 638 final, p. 17, emphasis added.

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The fact that illness or disability suffered after the issue of the residence permit does not qualify as a sufficient reason for refusal, withdrawal or renewal triggers the conclusion that illness or disability suffered before the issuance of a residence permit justifies the refusal, withdrawal or renewal. Therefore, Member States are entitled to make entry and issue of a first residence permit subject to a medical examination to determine whether a family member suffers from illness or disability. Such medical examinations shall not be performed on a systematic basis.431 19 Where illness or disability existed before entry and was concealed by the applicant a residence permit may be withdrawn or renewal refused and removal may be ordered on the sole ground of public health. However, Member States are obliged to consider the particular circumstances of the individual case (Article 17). 20 The law of several Member States does not distinguish between illness existing before or after the issue of the residence permit. This is compatible with Article 6(3) as long as illness or disability alone – occurred before or after the issue of the residence permit – are not considered as sufficient reasons to terminate residence.432 For instance, under German law, public health may only be invoked as a ground for expulsion and rejection of a residence permit if the foreigner ‘endangers public health through his or her behaviour’.433 Article 6 does not define public health. The term ‘public’ implies a danger for the general public. Only where a danger for third persons is to be feared, which cannot be easily prevented by protective health measures the ground of public health may be invoked.434 The definition of public health in Article 18(2) of the Long Term Residents Directive 2003/109/EC referring to ‘diseases as defined by the relevant applicable instruments of the World Health Organisation and such other infectious or contagious parasite-based diseases as are the subject of protective provisions in relation to nationals in the host country’435, may serve as a guideline to interpret Article 6.436 A higher threshold applies for Union citizens. Article 29 (1) of the Free Movement Directive 2004/38/EC requires ‘diseases with epidemic potential as defined by the relevant instruments of the World Health Organisation and other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the host Member State.’ 21 Article 6 does not specify the relevant time period for deciding whether reasons of public order, public policy or public health justify the rejection of an application for a residence permit or its withdrawal or non-renewal. According to the jurisprudence of the ECJ with regard to Union citizens, a correct assessment of a threat to public order must include facts which have occurred after the decision of the competent authorities.437 The reasons put forward by the ECJ in supporting the obligation to take into 18

431 Commission Communication, COM(2014) 210 final, p. 11; see also Article 18(4) Long Term Residents Directive 2003/109/EC. 432 Dissenting view obviously Labayle/Pascouau, Odysseus Synthesis Report on Directive 2003/86/EC, p. 91. 433 Section 55(2) in connection with Section 5(1) German Aufenthaltsgesetz (Residence Act), see Hailbronner/Carlitz, Directive 2003/86 Family Reunification National Report for Germany (Odysseus Network, 2007), p. 36. Dissenting view Labayle/Pascouau, Odysseus Synthesis Report on Directive 2003/86/ EC, p. 91. 434 Commission Communication, COM(2014) 210 final, p. 11. 435 In contrast the original proposal required ‘quarantinable diseases referred to by the World Health Organisation‘s International Health Regulation No 2 of 25 May 1951 …’, Commission Proposal, COM(2001) 127 final, Article 20(1). 436 Commission Communication, COM(2014) 210 final, p. 11. 437 Concerning the decisions to expel EU citizens ECJ, Orfanopoulos and Oliveri, C-482/01 and C-493/ 01, EU:C:2004:262, para 82: ‘[…] Article 3 of Directive 64/221 precludes a national practice whereby the national courts may not take into consideration, in reviewing the lawfulness of the expulsion of a

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account all facts in favour or against an applicant after the administrative decision, are applicable also to decisions under Article 6. The ‘threat’ in the Court’s view includes a present assessment on the basis of the Court’s final decision if a court is authorized to review an administrative decision with regard to legal as well a factual correctness.438

Article 7 1. When the application for family reunification is submitted, the Member State concerned may require the person who has submitted the application to provide evidence that the sponsor has: (a) accommodation regarded as normal for a comparable family in the same region and which meets the general health and safety standards in force in the Member State concerned; (b) sickness insurance in respect of all risks normally covered for its own nationals in the Member State concerned for himself/herself and the members of his/her family; (c) 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. Member States shall evaluate these resources by reference to their nature and regularity and may take into account the level of minimum national wages and pensions as well as the number of family members. 2. Member States may require third country nationals to comply with integration measures, in accordance with national law. With regard to the refugees and/or family members of refugees referred to in Article 12 the integration measures referred to in the first subparagraph may only be applied once the persons concerned have been granted family reunification. Content I. General remarks, drafting history and purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Economic requirements (Article 7(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Personal scope of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Accommodation (Article 7(1)(a)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Sickness insurance (Article 7(1)(b)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Stable and regular resources (Article 7(1)(c)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Prognosis on economic conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Integration measures (Article 7(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Personal scope of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Material scope of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ‘Integration measures’ and ‘integration conditions’ . . . . . . . . . . . . . . . . . . . . . . 4. Compatibility of Article 7(2) and of national pre-entry integration requirements with Article 8 ECHR, Articles 5 and 17 of the Directive 5. Compatibility of national exception clauses with the principle of nondiscrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Special rules for refugees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 4 6 9 12 22 23 23 27 34 43 50 52

national of another Member State, factual matters which occurred after the final decision of the competent authorities which may point to the cessation or the substantial diminution of the present threat which the conduct of the person concerned constitutes to the requirements of public policy. That is so, above all, if a lengthy period has elapsed between the date of the expulsion order and that of the review of that decision by the competent court.’ 438 For a similar ruling with regard to Turkish nationals privileged under the EEC Turkey Association Agreement see German Bundesverwaltungsgericht (Federal Administration Court), Decision of 2 August 2004, case 1 C 29/02, Neue Zeitschrift fu¨r Verwaltungsrecht (2005), p. 224, 225.

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I. General remarks, drafting history and purpose Article 7(1) stipulates that Member States may require evidence of accommodation, sickness insurance and stable and regular resources. The purpose of these requirements is to ensure that family members do not become a financial burden to the social system of the receiving Member State439 and to facilitate the integration of third-country nationals through a certain standard of living.440 2 The accommodation and sickness insurance requirement correspond by and large to the initial draft. The requirement of stable and regular resources has been modified during the negotiation process: Whereas the first proposal read ‘stable and sufficient resources [which are …] higher than or equal to the level of resources below which the Member State concerned may grant social assistance’441 (c) now refers to the ‘minimum national wages and pension’ which allows for higher resources to be required. The reference to minimum national wages was inserted on request of France.442 The specifying additional sentence that ‘[T](t)he stable resources criterion shall be evaluated by reference to the nature and regularity of the resources’ was inserted by the third proposal.443 During the final negotiations the phrase that Member States ‘may take into account the level of minimum national wages and pensions as well as the number of family members’ was added. The former part of Article 7(1) on resource requirements in case of renewal444 was removed from Article 7 and became Article 16(1)(a). An explicit non-discrimination clause in the original Commission proposal providing that the conditions ‘may not have the effect of discriminating between nationals of the Member State and third-country nationals’445, was deleted during the final negotiations on request of Austria and Greece.446 3 Article 7(2) allows Member States to require third-country nationals ‘to comply with integration measures’. This provision was inserted during the final negotiations447 on a joint request of Austria, Germany and the Netherlands448 and reflects the tendency of these Member States to combine family reunification policy and integration policy by making family reunification subject to integration efforts.449 Article 7 is one of the most controversial provisions of the Directive. On the basis of the provision several Member States have introduced pre-entry integration requirements such as language tests while family members of highly skilled workers and nationals from certain western countries are frequently exempted. National implementation measures have provoked criticism based upon Article 8 ECHR and non-discrimination requirements450 (see below MN 40 et seqq.). 1

439

Commission Proposal, COM(1999) 638 final, p. 18. Boeles/den Heijer et al., European Migration Law, p. 194. As Wiesbrock, Legal migration to the EU, p. 521 et seq. observes, it may be doubted whether the income and housing requirements actually serve the purpose of integration. First of all, these requirements do not solve problems of ethnic segregation; second, financial difficulties will delay family reunification, preventing for example the integration of children at a young age. 441 Commission Proposal, COM(1999) 638 final, Article 9 (1)(c), emphasis added. 442 The request is first mentioned in Council doc. 13968/02 of 12 November 2002, p. 12. 443 Commission Proposal, COM(2002) 225 final, Article 7(1)(c). 444 Commission Proposal, COM(2002) 225 final, second subparagraph of Article 7(1). 445 Commission Proposal, COM(1999) 638 final, Article 9(2). 446 Council doc. 13968/02 of 12 November 2002, p. 13, note 2. 447 Council doc. 13968/02 of 12 November 2002, p. 12, note 1: Para 2(1) was inserted on suggestion of the Presidency. 448 Hauschild, Zeitschrift fu ¨ r Ausla¨nderrecht und Ausla¨nderpolitik 2003, p. 266, 271. 449 Michalowski/Walter, in: Bo ¨ cker/Havinga et al. (eds), Migration Law and Sociology of Law, p. 103, 104. Groenendijk, EJML 2011, p. 1 identifies the introduction of language requirements as ‘selection instruments’. 450 See for instance Human Rights Watch, Discrimination in the name of Integration. 440

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II. Economic requirements (Article 7(1)) 1. Personal scope of application Article 7(1) allows Member States to require ‘the person who has submitted the 4 application to provide evidence that the sponsor has’ accommodation (a), sickness insurance (b) and stable and regular resources (c). This formulation indicates that only the sponsor must have accommodation, sickness insurance and resources for him-/herself and his/her family members.451 The wording of Article 7(1) prevents Member States from imposing economic conditions on family members.452 The Council documents reveal that a suggestion submitted by Austria that the requirements should be met by the sponsor and by the family members and the provision therefore should be formulated ‘may ask the sponsor/family member(s)’ instead of ‘may ask the sponsor’ was not accepted.453 Nevertheless, Article 7(1) explicitly or implicitly (see (a): ‘for a comparable family’) 5 allows Member States to require that the means are sufficient for the sponsor and his/ her family member/s. Furthermore, when deciding on a first residence permit Member States ‘may’ (optionally) take the income of other family members into account.454 By contrast, Article 16(1)(a) contains an obligation to take the family members’ income into account in case of renewal of a residence permit. Social security benefits should not be taken into account as family member’s contributions to the household income.455 Social security benefits may be interpreted as including all benefits which are at least partly based upon own contributions and membership in a common security system. Within the EU social legislation a wider concept of social security is used covering benefits falling within the scope of application of Regulation No. 1408/71 as opposed to social assistance.

2. Accommodation (Article 7(1)(a)) Member States may require evidence that the sponsor has accommodation which is 6 ‘normal for a comparable family in the same region and which meets the general health and safety standards in force in the Member State’ (Article 7(1)(a)). This definition, which contains a number of elements, describes the upper limit which Member States may require. Member States may require lower standards, but national norms of transposition must safeguard that national administrations do not require standards going beyond this standard. The accommodation must correspond to the typical standard used by a comparable family in the same region. The original proposal contained the term ‘adequate’ instead of ‘normal’ accommodation. The term ‘normal’ refers to size, hygiene and safety.456 The condition of a ‘comparable family’ refers to comparability in terms of number of family members and social status.457 It follows from this phrase that the accommodation must not only be sufficient for the sponsor, but also for the family members. The requirement that the accommodation must be comparable to accommoda451

Boeles/den Heijer et al., European Migration Law, p. 195. Boeles/den Heijer et al., European Migration Law, p. 195. 453 Council doc. 13968/02 of 12 November 2002, p. 12, note. 2. 454 Boeles/den Heijer et al., European Migration Law, p. 195, this possibility is for example implemented in Germany, Section 2(3) German Aufenthaltsgesetz (Residence Act), and France, Article 29(1) Ordonnance (Regulation) No. 45-2658 of 2 November 1945. 455 Council doc. 10857/02 of 9 August 2002, p. 13, note 2. 456 Commission Communication, COM(2014) 210 final, p. 11. 457 Commission Communication, COM(2014) 210 final, p. 11. 452

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tion ‘in the same region’ allows Member States to take the situation on a municipal or regional level into account. The condition that the accommodation ‘meets the general health and safety standards in the Member States’ means that the accommodation must comply with the Member State’s general hygiene and construction rules. 7 The criteria mentioned in Article 7(1) need to be interpreted in such a way as not to render the right to family reunification mentioned in Article 4(1) unachievable.458 National legislation transposing Article 7(1)(a) should specify the general requirements and ensure that it is guaranteed that they are ‘transparent and clearly specified’459 and fully enforceable before national courts. The transposition into national law shows diversity; some Member States require a specific number of rooms, others a specific number of square meters, others do not exactly specify the housing requirement.460 8 The condition of accommodation is fulfilled if on the basis of a prognosis it is possible to establish that accommodation will be available for the sponsor and the family member/s. Proof of accommodation will regularly be made by a rental or purchase agreement. Member States may consider as insufficient a limited renting contract.461 As processing times and waiting periods are sometimes lengthy, it can be disproportionate to ask for fulfilment of the requirement at the moment of application because of additional financial and administrative burden for the sponsor.462

3. Sickness insurance (Article 7(1)(b)) The sponsor may also be required to have sickness insurance ‘for him/herself and the members of his/her family’ (Article 7(1)(b)). The provision aims at avoiding that the person becomes a burden to the social security system in case of sickness463 and corresponds to similar requirement in directives on free movement of persons.464 According to (b) the sickness insurance needs to cover ‘all risks normally covered for its own nationals in the Member State concerned’, and not ‘all risks in the Member State’, which was required by the original proposal.465 This requirement is fulfilled if the third-country national is insured in a compulsory universal health insurance scheme.466 Otherwise the requirement can be fulfilled through ‘(a) a system of conditional health insurance granted on acceptance of an application for family reunification of a family member or (b) a private health insurance that covers risks that are normally covered by a health insurance for MS nationals’467. 10 National law which requires comprehensive health insurance for all risks in the Member States without containing the limitation to risks ‘normally covered for its own 9

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Commission Proposal, COM(1999) 638 final, p. 18. Commission Communication, COM(2014) 210 final, p. 11. 460 Groenendijk/Fernhout et al., The Family Reunification Directive, p. 25 and for further references to the different transpositions into national law in the Member States see Wray/Agoston/Hutton, EJML 2014, p. 224–226. 461 Commission Communication, COM(2014) 210 final, p. 12. 462 Commission Communication, COM(2014) 210 final, p. 12 proposing to accept conditional rental agreements in such cases. 463 Commission Proposal, COM(1999) 638 final, p. 18. 464 Commission Proposal, COM(1999) 638 final, p. 18. See Article 7(1)(c) second indent of Free Movement Directive 2004/38/EC; Article 5(1)(b) of Long Term Residents Directive 2003/109/EC; Article 6(1)(c) of Students Directive 2003/114/EC. 465 Commission Proposal, COM(1999) 638 final, p. 28, Article 10(1)(b). The formulation corresponded to the requirement for economically inactive Union citizens and their family members, Article 1(1) of Directive 90/364/EEC (OJ 1990 L 180/26) on the right of residence. 466 Commission Communication, COM(2014) 210 final, p. 12. 467 Commission Communication, COM(2014) 210 final, p. 12. 459

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nationals’468 is in line with Article 7(1) as long as the same standard of insurance for all risks is ‘normal’ for a Member State’s own nationals.469 In the Baumbast judgment the ECJ, however, held that a comprehensive sickness 11 insurance, which covers all health risks provided under national law, may constitute an unproportional restriction to free movement of Union citizens, provided that the ordinary risks of sickness are covered.470 Whether the ruling may be applied by analogy to family reunion to third-country nationals is questionable since there is no corresponding general right of family reunion in EU law beyond the confines of the Directive. Article 8 ECHR does not provide an individual right of third-country nationals to receive a residence permit for the purpose of joining a spouse or a family. If denial of family reunion interferes, however, with Article 8 ECHR under the circumstances specified in the jurisprudence of the ECtHR, third-country nationals may not be referred to alternative possibilities to continue a family life in their particular situation. A condition of comprehensive sickness insurance is an excessive and unnecessary restriction in order to achieve the general purposes of Article 7(1).471

4. Stable and regular resources (Article 7(1)(c)) Article 7(1)(c) allows Member States to require the sponsor to have stable and regular 12 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’. According to Article 7(1)(c) Member States shall evaluate these resources by reference to their nature and regularity and may take into account the level of minimum national wages and pensions as well as the number of family members. The provision is almost congruent with the definition of Article 5(1)(a) of the Long Term Residents’ Directive 2003/109/EC472 with the exception that Article 7(1)(c) allows the number of family members to be taken into account. These standards constitute the upper limit and Member Sate may not require resources going beyond these considerations.473 The elements of stability and regularity allow Member States to carry out a prog- 13 nosis.474 Stability and regularity of resources require that the applicant shows that resources will be available at a certain level presently and in the future on a regular basis. Stability of resources is evaluated by reference to their function, nature and regularity.475 With regard to the stable resources requirement the Netherlands had suggested a precise definition requiring that the applicants ‘should prove they had476 stable resources for at least one whole year’.477 The Commission hesitated to amend the criteria arguing they were based on Community law and designed to ensure comparable 468 See Peek, Richtlinienumsetzung: Europarechtliche Anforderungen und mitgliedstaatliche Praxis Richtlinienumsetzung (Nomos, 2010), p. 202 with reference to Austria, Belgium and Poland. 469 Peek, Richtlinienumsetzung: Europarechtliche Anforderungen und mitgliedstaatliche Praxis Richtlinienumsetzung (Nomos, 2010), p. 202. This corresponds with the requirement for long term residents, see Thym, Long Term Residents Directive 2003/109/EC, Article 5 MN 9. 470 See ECJ, Baumbast and R, C-413/99, EU:C:2002:493, para 89. 471 For the requirements of the principle of proportionality see ECJ, Allue ´ and Others v Universita` degli studi di Venezia and Others, joined cases C-259/91, C-331/91 and C-332/91, EU:C:1993:333, para 15. 472 However, the interpretation as regards long term residents might for persuasive reasons not be as strict as for family reunion, see Thym, Long Term Residents Directive 2003/109/EC, Article 5 MN 3. 473 Walter, Familienzusammenfu ¨ hrung in Europa, p. 177. 474 See Thym, Long Term Residents Directive 2003/109/EC, Article 5 MN 5 also highlighting the allowance for and requirement of a prognosis in relation to the resources in case of long term residents. 475 Commission Proposal, COM(2002) 225 final, p. 8. 476 The German and French versions of the Council document indicate ‘have’ instead of ‘had’. 477 Council doc. 11524/00 of 4 January 2001, p. 16, note 2.

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treatment of third-country nationals with citizens of the Union.478 Therefore, the Directive does not prescribe a fixed amount of financial resources for at least one whole year. The decisive criterion is the reasonable assumption based upon a prognosis that in the foreseeable future an applicant will not depend on the social system of the respective Member State. 14 Stable and regular resources will generally be sufficiently proven by an unlimited employment contract.479 However, since unlimited employment contracts are unusual at the beginning of an employment relationship, it will generally be sufficient to conclude an employment contract that can be prolonged if this type of contract is in line with the typical national employment conditions. Moreover, in IT, media or creative sectors temporary contractual work may be standard practice and resources still available on a stable and regular basis.480 Sufficient resources may also be ensured by other means of income than employment activities, such as private means or self-employed activity of the sponsor.481 The condition is also fulfilled if resources are received through invalidity or retirement pension, even if the pension is received from the state482 as in this case the pension is based on contributions made by the sponsor or family member.483 Regular income by a private bail may also satisfy the conditions, as long as the declaration is unlimited.484 A right to alimony only satisfies the condition if the applicant can prove that resources will be available regularly. This will generally only be possible if the person responsible for the payments is lawfully resident in the Member State.485 Public means which are paid in order to secure the stay of a third-country national and family members such as scholarships may be considered as sufficient if they are guaranteed.486 The qualifications and skills of the sponsor, the labour market situation and structural vacancies in the specific field of work of the sponsor may also be relevant factors for the evaluation of the availability of resources.487 15 Recourse to the social assistance system of the Member State may justify rejection of an application (Article 16(1)(a)).488 When making a decision on a first residence permit Member States are not obliged to take into account contributions of the family members to the household income contrary to Article 16(1)(a) which applies only in case of renewal of a residence permit.489 Nevertheless, since the ECJ held that, (only) ‘in principle’490 the sponsor’s resources are the subject of the individual examination of applications, Member States are free to supplementary take into account the resources of family members.491 478

Council doc. 11524/00 of 4 January 2001, p. 16, note 2. Commission Communication, COM(2014) 210 final, p. 13. 480 Commission Communication, COM(2014) 210 final, p. 13. 481 Commission Communication, COM(2014) 210 final, p. 13; Oosterom-Staples, in: Baldaccini/Guild/ Toner (eds), Whose Freedom, Security and Justice?, p. 451, 473. For possibility of diverse origins of resources corresponds see also Thym, Long Term Residents Directive 2003/109/EC, Article 5 MN 7. 482 Oosterom-Staples, in: Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice?, p. 451, 473. 483 Hailbronner, Ausla ¨ nderrecht. Kommentar, looseleaf December 2013 (C.F. Mu¨ller), A 1 § 2 para 55. 484 Hailbronner, Ausla ¨ nderrecht. Kommentar, looseleaf December 2013 (C.F. Mu¨ller), A 1 § 2 para 45. 485 Hailbronner, Ausla ¨ nderrecht. Kommentar, looseleaf December 2013 (C.F. Mu¨ller), A 1 § 2 para 41 486 Hailbronner, Ausla ¨ nderrecht. Kommentar, looseleaf December 2013 (C.F. Mu¨ller), A 1 § 2 para 49. 487 Commission Communication, COM(2014) 210 final, p. 13. 488 Walter, Familienzusammenfu ¨ hrung in Europa, p. 177. 489 Tewocht, Der Schutz von Ehe und Familie im Ausla ¨ nder- und Asylrecht (Universita¨t Halle-Wittenberg, 2008), p. 22. Dissenting view Dienelt, Auswirkungen der Familienzusammenfu¨hrungsrichtlinie auf das AufenthG (Dienelt, 2008), p. 88 who states that the second subparagraph of Article 16(1)(a)indicates that income of family members may only be taken into account at an application for renewal. 490 ECJ, O. & S., joined Cases C-356/11 and C-357/11, EU:C:2012:776, para 72. 491 Commission Communication, COM(2014) 210 final, p. 14. 479

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Like in the case of Article 7(1)(a) (accommodation) the conditions in Article 7(1)(c) are quite specific and therefore the question arises to what extent the elements mentioned in article 7(1)(c) must be explicitly copied into national law in order to be correctly transposed. With the exception of Belgium and Sweden all Member States require sufficient income.492 Some Member States require a specific minimum level at the level comparable to the minimum wage,493 others require a level comparable to social security benefits.494 Transposition by national administrative guidelines is not sufficient.495 However, where national law clearly points to general social security law, transposition is sufficient, if it secures that the limits of Article 7(1)(c) are not exceeded (see the phrase ‘without recourse to public funds’ in German law496). Denmark, which is not bound by the Directive, is reported to require a substantial amount (7000 EUR) as deposit money.497 For Member States bound by the Directive such a requirement is not permissible under the Directive. Article 7(1)(c) only allows to require resources ‘sufficient to maintain’. This implies that a certain regularity may be required, but not an additional deposit. The resources requirement is contrasted with the condition ‘without recourse to the social assistance system’ in Article 7(1)(c). Social assistance ‘is a concept which has its own independent meaning in European Union law and cannot be defined by reference to concepts of national law’498. It refers to ‘assistance granted by the public authorities, whether at national, regional or local level, which can be claimed by an individual, in this case the sponsor, who does not have stable and regular resources which are sufficient to maintain himself and the members of his family and who, by reason of that fact, is likely to become a burden on the social assistance system of the host Member State during his period of residence’.499 Member States may ‘take into account the level of minimum wages and pensions’ when evaluating the sponsor’s resources (Article 7(1)(c)). The reference to national minimum wages was inserted on request of France500 with the intention to raise the threshold for the resource requirement,501 since minimum wages will regularly be higher than social assistance. The Netherlands provided a threshold of 120 % of the legal minimum wage in order to make sure that ‘essential costs arising from exceptional circumstances’ may also be met.502 This rose the question whether ‘Article 7(1)(c) allows a Member State to set an income threshold at a level which rules out any possibility of recourse to special assistance’503. A comparative analysis of the sufficient resources requirement generally applied with respect to issuance of residence permits speaks in favour of an interpretation distinguishing between dependence upon the social welfare system and potential 492 Groenendijk/Fernhout et al., The Family Reunification Directive, p. 25; Labayle/Pascouau, Odysseus Synthesis Report on Directive 2003/86/EC, p. 99. 493 Groenendijk/Fernhout et al., The Family Reunification Directive, p. 26. This is the case in France, Greece, Hungary, Latvia, Lithuania, Luxembourg and Slovakia. 494 Groenendijk/Fernhout et al., The Family Reunification Directive, p. 26: Austria, the Czech Republic, Denmark, Estonia, Italy, Portugal. For further references to the different transpositions into national law in the Member States see Wray/Agoston/Hutton, EJML 2014, p. 229–232. 495 Hailbronner, Zeitschrift fu ¨ r das Gesamte Familienrecht 2005, p. 1, 4. 496 Section 2(3) German Aufenthaltsgesetz (Residence Act). 497 Groenendijk/Fernhout et al., The Family Reunification Directive, p. 26. 498 ECJ, Chakroun, C-578/08, EU:C:2010:117, para 45. 499 ECJ, Chakroun, C-578/08, EU:C:2010:117, para 46. 500 Council doc. 13968/02 of 12 November 2002, p. 12. 501 See Walter, Familienzusammenfu ¨ hrung in Europa, p. 259. 502 See AG Sharpston, Chakroun, C-578/08, EU:C:2009:776, para 29. 503 AG Sharpston, Chakroun, C-578/08, EU:C:2009:776, para 29.

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eligibility for municipal income support measures.504 Since ‘authorisation of family reunification is the general rule, the faculty provided for in Article 7(1)(c) of the Directive must be interpreted strictly’505 and ‘exercised in a manner which avoids undermining the objective of the Directive, which is to promote family reunification, and the effectiveness thereof.’506 The Court stated that the concept ‘must be interpreted as referring to assistance which compensates for a lack of stable, regular and sufficient resources, and not as referring to assistance which enables exceptional or unforeseen needs to be addressed’.507 Thus, Member States may not require an income beyond the level of minimum wages but may determine ‘a certain sum as a reference amount, but not as meaning that they may impose a minimum income level below which all family reunifications will be refused, irrespective of an actual examination of the situation of each applicant. That interpretation is supported by Article 17 of the Directive, which requires individual examination of applications for family reunification’.508 21 In applying the resource requirement of Article 7(1)(c) no distinction may be made according to whether a family relationship arose before or after the sponsor entered the Member State. The ECJ rejected the possibility to distinguish both situations with regard to the resource requirement arguing that neither the Directive nor Article 8 ECHR or Article 7 CFR draws such a ‘distinction based on the time of marriage of the spouses’509 and that ‘the capacity of a sponsor to have regular resources which are sufficient to maintain himself and the members of his family within the meaning of Article 7(1)(c) of the Directive cannot in any way depend on the point in time at which he constitutes his family.’510

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States may require evidence that the conditions of Article 7(1)(a) – (c) are fulfilled at the time the application for family reunification is submitted. The practice of some Member States511 to require the existence of financial means prior to the entry of family members, may amount to a considerable financial burden on the sponsor since the duration of the reunification procedure can take several months.512 Article 7 clearly refers to the time of application for family reunification.513

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Groenendijk, EJML 2006, p. 215, 222. ECJ, Chakroun, C-578/08, EU:C:2010:117, para 43. 506 ECJ, Chakroun, C-578/08, EU:C:2010:117, para 47. 507 ECJ, Chakroun, C-578/08, EU:C:2010:117, para 49. 508 ECJ, Chakroun, C-578/08, EU:C:2010:117, para 48. 509 ECJ, Chakroun, C-578/08, EU:C:2010:117, para 59. 510 ECJ, Chakroun, C-578/08, EU:C:2010:117, para 64. 511 Austria and Belgium, see Commission Report, COM(2008) 610 final, p. 6. 512 Commission Report, COM(2008) 610 final, p. 6. 513 Commission Proposal, COM(1999) 638 final, Explanatory Memorandum, p. 18; Council doc. 11524/00 of 4 January 2001, p. 16, note 1: During the discussions on the second proposal Germany, supported by Austria, asked ‘whether the fact that the applicant met the requirements laid down in this provision had to be established solely at the time the application was lodged or whether it could also be established at a later stage.’ It pointed in particular to cases where an applicant might have sufficient resources at the time of his application but was no longer able to support his family after submitting it, thus having to rely on public assistance. It therefore suggested adding a new paragraph 4 reading as follows: ‘4. Where the conditions referred to in paragraph 1 are no longer fulfilled, Member States may refuse to issue a residence permit or extend its validity. The refusal of any such extension may not be considered when the family member has resided in the Member State for more than … years.’ 505

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III. Integration measures (Article 7(2)) 1. Personal scope of application Member States ‘may require third-country nationals to comply with integration measures, in accordance with national law’. The term ‘third-country nationals’ indicates that the condition may be applied to the sponsor as well as to the family members. This wide interpretation is supported by the fact that for example Articles 6, 7(1) and 8 clearly distinguish between the ‘sponsor’ and the ‘family member’. The provision may also be applied where Member States admit additional family members to their territory on the basis of Article 4(2) and (3) or Article 10(2). The provision is not applicable to minor children under 12 years of age. This follows from Article 4(1) which allows Member States to maintain a condition of integration on minor children above the age of 12 arriving independently. As recital 12 explains, younger children are presumed to have a better capacity for integration and to receive the necessary skills in school. By argumentation e contrario minor children below 12 years of age are exempt from integration measures.514 With regard to children above the age of 12 Article 7 remains applicable.515 Since Article 4(1) speaks of ‘condition for integration’ which may be maintained, it cannot be assumed that this provision was intended to limit the scope of application of Article 7 with respect to the more general power to impose ‘integration measures’. The function of the standstill clause of Article 4(1) was to allow Member States to maintain their existing restrictions in the context of rules on age limits for children while Article 7 was intended to deal with the more general problem of enacting integration measures. This interpretation is supported by Article 7(2) which allows to impose integration measures on refugees only once they have been granted family reunification. If the legislator had envisaged a similar restriction one would have expected an explicit provision with respect to children. Refugees and their core family members, i. e. spouses and minor children (Articles 12(1), 4(1)) may be required to comply with integration measures only after family reunification is granted (Article 7(2), see below MN 33).

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2. Material scope of application Article 7(2) allows Member States to require compliance with integration measures, 27 provided they are stipulated by national legislation (‘in accordance with national law’). The objective of these measures is to facilitate the integration of family members. Therefore, their admissibility depends on whether they serve this purpose and comply with the principle of proportionality.516 National requirements must not undermine the objective of the directive to promote effectively family reunification.517 The term ‘integration measures’ is not defined in the Directive nor in other directives and raises a number of concerns. 514

Ecker, Familienzusammenfu¨hrung, p. 92. Only Germany uses this restriction, see the Summary of Stakeholder Responses to the Green Paper p. 9 available at: http://ec.europa.eu/dgs/home-affairs/what-is-new/public-consultation/2012/consulting_0023_en.htm [last accessed 27 January 2015]. 516 Commission Communication, COM(2014) 210 final, p. 15 and ECJ, K and A, C-153/14, EU:C:2015:453, para 50 et seq. 517 Commission Communication, COM(2014) 210 final, p. 15 and ECJ, Chakroun, C-578/08, EU:C:2010:117, para 43 clearly labelling the objective of the Directive. 515

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The practice of the Member States shows different interpretations. Some Member States require compliance with integration requirements after entry which may take the form of language and civic integration courses or language tests after admission.518 29 In 2008, three Member States (the Netherlands, Germany and France) had implemented integration measures before entry which means that the admission of family members is conditional to compliance with integration measures.519 In all three Member States the integration requirement still exists520 and needs to be fulfilled within the visa procedure. The implementation in the three Member States differs. 30 The Netherlands is reported to require all family members of a third country and of Dutch nationals to pass an obligatory language and civic integration test covering language and basic knowledge of Dutch society since March 2006.521 Dutch policy documents reveal the intention of the regulation to prevent underprivileged or uneducated family members from immigrating and support integration of admitted family members.522 The Dutch government had been preparing this test since 2002.523 The test is taken by telephone at a Dutch embassy or consulate to a computer in the United States.524 Highly skilled migrants and citizens of specific, mainly western countries are exempt.525Migrants have to prepare themselves for the test. The Netherlands offer a video package available in six languages and a DVD package available in fourteen languages.526 The examination preparation pack is reported to cost E 110.527 The examination fee for the test is E 350 and must be paid each time the test is taken.528 If a candidate fails to pass the test, the decision cannot be challenged, but the test can be re-taken. However, there are additional costs for travelling to the closest Dutch mission to take the examination.529 In K and A the ECJ held that these fees are too high and ‘capable of making family reunification impossible or extremely difficult’.530 31 Germany requires spouses to have ‘basic knowledge of German language’ since August 2007.531 The required language skills correspond to level A1 CEFR532 and have to be demonstrated at an embassy or consulate before entry. There is no legal obligation to attend a specific language course nor to pass a specific test. However, the applicant has the burden of proof with regard to the existence of basic language skills and has to bear 28

518 Commission Report, COM(2008) 610 final, p. 7; and the Summary of Stakeholder Responses to the Green Paper, p. 11, available at: http://ec.europa.eu/dgs/home-affairs/what-is-new/public-consultation/ 2012/consulting_0023_en.htm [last accessed 27 January 2015]. 519 Commission Report, COM(2008) 610 final, p. 7. 520 See the Summary of Stakeholder Responses to the Green Paper, p. 11, available at: http://ec.europa.eu/dgs/home-affairs/what-is-new/public-consultation/2012/consulting_0023_en.htm [last accessed 27 January 2015]. 521 Groenendijk, EJML 2011, p. 12. 522 Groenendijk, EJML 2011, p. 1. 523 Groenendijk, EJML 2006, p. 215, 223. 524 Groenendijk, EJML 2006, p. 215, 223. 525 EEA States, Australia, Canada, Japan, New Zealand, South Korea, USA, Human Rights Watch, The Netherlands: Discrimination in the Name of Integration (HRW, 2008), p. 13. Surinamese nationals who have completed at least primary education in the Dutch language, Article 16(3) Vreemdelingenwet 2000 (Dutch Aliens Act) as amended by the Integration Abroad Act. 526 Human Rights Watch, The Netherlands: Discrimination in the Name of Integration (HRW, 2008), p. 13. 527 ECJ, K and A, C-153/14, EU:C:2015:453, para 67. 528 Human Rights Watch, The Netherlands: Discrimination in the Name of Integration (HRW, 2008), p. 14. 529 ECJ, K and A, C-153/14, EU:C:2015:453, para 70. 530 ECJ, K and A, C-153/14, EU:C:2015:453, paras 69 and 71. 531 Section 30(1) German Aufenthaltsgesetz (Residence Act). 532 Common European Framework of Reference for Languages (CEFR). More information is available at: www.coe.int/lang-CEFR [last accessed 16 February 2015].

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the costs thereof.533 In contrast to the Netherlands, Germany has a net of state-run language institutes (Goethe institutes) in many countries of origin. The embassies and consulates regularly require a language certificate ‘Start 1’ issued by the Goethe institute unless it is otherwise obvious that the language skills exist or there is no Goethe institute in the country of origin.534 The language certificate ‘Start 1’ is issued if a corresponding language test at a Goethe institute has been passed. It takes 3–6 months for training literate participants; 63 % of the external candidates and 76 % of the internal candidates pass ‘Start 1’.535 According to the German Government’s explanation the new provision is also meant to make it harder for families in law to prevent victims of forced marriages from establishing their own social life by using the fact that they do not possess language skills. The provision shall also have preventive effects, since educated men and women are considered to be harder to control and therefore less prone for forced marriages.536 Spouses of sponsors of mainly western countries’ nationalities, refugees, researchers and high-skilled workers are exempt. There is no general hardship clause. However, in certain explicitly enumerated hardship cases spouses are exempt from the language requirement. For example spouses who are not able to prove German language skills due to mental, psychological or physical illness or disability or who will live in Germany only for a short period of time are exempt.537 Illiteracy, pregnancy and age as such are no grounds for exemption unless they amount to mental, psychological or physical illness. In France, since 1 December 2008, the issuing of the visa is conditional on the 32 assessment of knowledge of French and where the language proficiency is insufficient, on the attendance of languages courses. Applicants are only obliged to participate, not to achieve certain results and the courses are organised by the government and free of charge.538 Furthermore, knowledge of civic integration or ‘Republican Values’ are tested.539 French legislation does not specify a minimum length, but allows the French authorities to ask for a maximum length of two months.540 In Turkey for example, the French embassy asks immigrants to sit in class for 40 hours.541 Once the family member has been admitted to reside in France, he/she has to sign a ‘reception and integration’ contract which obliges him/her to take civic courses and, when needed, language courses. The admissibility of pre-entry measures is indicated by Article 7(2) which stipulates 33 that with regard to refugees and their family members integration measures ‘may only be applied once the persons concerned have been granted family reunification.’542 This sentence was introduced on the initiative of the Netherlands which at the time was the only Member State imposing integration requirements on family members of refugees after entry543 and implies that for other family members integration measures may be 533

Section 82(1) German Aufenthaltsgesetz (Residence Act). Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz (General Instruction on the Residence Act), Gemeinsames Ministerialblatt (2009), No. 42–61, p. 892. 535 Bundestag-Drucksache (German Parliamentary doc.) No. 17/14337 of 5 July 2013; No 17/194 of 12 December 2009, p. 5, data for the 15 main countries of origin from 1 January 2009–30 June 2009. 536 Bundestag-Drucksache (German Parliamentary doc.) No. 16/5065 of 23 April 2007, p. 173. 537 Section 30(1) German Aufenthaltsgesetz (Residence Act). 538 Bonjour, EJML 2010, p. 300. 539 See Groenendijk, EJML 2011, p. 16, providing further information to the national stipulations. 540 Art. L211-2-1 Code de l’entre ´e et du se´jour des e´trangers et du droit d’asile (French Residence Act) available at: http://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006070158 [last accessed 16 February 2015]. 541 Information of the French Embassy in Turkey, available at: http://www.ambafrance-tr.org/spip.php?article1245 [last accessed 16 February 2015]. 542 Groenendijk, EJML 2006, p. 215, 224. 543 Hauschild, Zeitschrift fu ¨ r Ausla¨nderrecht und Ausla¨nderpolitik 2003, p. 266, 271. The Council documents actually reveal that such a provision was first requested by Germany, Council doc. 5508/03 of 23 January 2003, p. 16. 534

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required before admission.544 Article 15(3) of the Blue Card Directive 2009/50/EC supports this conclusion by stipulating that with regard to Blue Card holders and their family members integration conditions and measures mentioned in Directive 2003/86/EC may only be applied after the persons concerned have been granted family reunification.545

3. ‘Integration measures’ and ‘integration conditions’ The term ‘integration measures’ gives rise to a debate whether a language test or language skills at a certain level may be required under Article 7(2) before entry. Several authors maintain that Article 7(2) allows to require certain efforts such as participation in a measure but does not permit proof of a certain language level or a certain success of integration measures.546 The wording of the provision indicates a difference between ‘integration measures’ in Article 7(2) and ‘integration conditions’ as mentioned in Article 4(1), measures allowing for less far-reaching efforts than conditions.547 It has also been suggested that the term ‘measure’ indicates that such measures must be offered by a Member State.548 However, neither the concept of integration conditions nor that of integration measures is defined in the Directive and therefore the degree of difference remains unclear. 35 It has also been argued that pre-entry tests are excluded in Article 7(2) by comparison with the Long Term Residents’ Directive 2003/109/EC549 which distinguishes between integration measures and integration conditions. Member States may require third-country nationals to ‘comply with integration conditions’ in order to receive longterm resident status (Article 5(2) of the Long term Residents’ Directive 2003/109/EC). ‘Integration measures’ may be required in order to move to a second Member State unless the applicant has already fulfilled an integration condition in the sense of Article 5(2) of the Long Term Residents’ Directive 2003/109/EC in order to receive long-term resident status (Article 15(3) of the Long Term Residents’ Directive 2003/ 109/EC). Attendance of a language course may nevertheless be required (Article 15(3) of the Long Term Residents’ Directive 2003/109/EC). The Council documents show that replacement of the term ‘integration measure’ in Article 15(3) (then Article 16) of the Long Term Residents’ Directive 2003/109/EC by the term ‘integration condition’ was discussed in Council but finally rejected.550 Whether this drafting history supports the assumption that the concept of ‘integration condition’ allows for more far-reaching obligations, such as passing language tests and mastering language at a certain level 34

544 Groenendijk, EJML 2006, p. 215, 224; Go ¨ bel-Zimmermann, Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik 2008, p. 169, 173; Hailbronner, Zeitschrift fu¨r das Gesamte Familienrecht 2005, p. 1, 5; Boeles/den Heijer et al., European Migration Law, 195–196. 545 Boeles/den Heijer et al., European Migration Law, p. 196. 546 Fischer-Lescano, ‘Verscha ¨rfung des Ausla¨nderrechts unter dem Deckmantel der Umsetzung von EU-Richtlinien’, Kritische Justiz 3 (2006), p. 236, 241; Groenendijk, EJML 2006, p. 215, 224; Go¨belZimmermann, Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik 2008, p. 169, 173; Kingreen, ‘Verfassungsfragen des Ehegatten- und Familiennachzugs im Aufenthaltsrecht’, Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik (2007), p. 13, 18; Markard/Truchseß, Neue Zeitschrift fu¨r Verwaltungsrecht 2007, p. 1025, 1027; Walter, Familienzusammenfu¨hrung in Europa (Nomos, 2009), p. 179. 547 The German version of Article 4(1) mentions: ‘Integrationkriterium erfu ¨ llt’ which could be translated as ‘meet a criterion for integration’. The English version makes more obvious, that in case of minor children the admission can be made conditional of the integration requirement, which implies that more far-reaching endeavours may be requested. 548 Walter, Familienzusammenfu ¨ hrung in Europa, p. 179; Groenendijk, EJML 2006, p. 215, 224. 549 Groenendijk, EJML 2006, p. 215, 224, with reference to Council doc. 7393/1/03 REV 1 of 14 March 2003, p. 5. 550 Council doc. 7393/1/03 REV 1 of 14 March 2003, p. 5: ‘In this context, while welcoming the compromise reached at Council level, D, NL and A considered that in the relevant clause the word measures should be replaced by conditions. Such a suggestion has not been supported by most delegations.’

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whereas the concept of ‘integration measures’ only allows to require that an immigrant make certain efforts has ever since been controversial.551 Such efforts being, for example, the participation in language courses which must be offered in the country of origin.552 Since both Directives have been negotiated parallel and the discussion about integra- 36 tion provisions was negotiated at the same time553 there is a certain presumption that the terminology found in the compromise on the Long Term Residents’ Directive 2003/ 109/EC is also relevant for the Family Reunification Directive.554 There are significant differences between the context of application in cases of family reunification and such regarding long term resident status.555 Whether provisions in different Directives must be interpreted identically is however highly questionable since other examples show that each provision has to be interpreted with regard to the special purposes of the Directive.556 All what may be concluded from the debate is that the term ‘integration condition’ was intended to cover a wider range of state action including such measures as integration tests or language courses. Neither the drafting history of the Long Term Residents’ Directive 2003/109/EC nor that of Directive 2003/86/EC clearly indicates that the concept of ‘integration measure’ excludes pre-entry integration requirements such as demonstration of language skills at a certain language level.557 The existence of a clear concept is all the more doubtful as in some provisions of the Directive inconsistency or ambiguity has been accepted in order to achieve the necessary consensus for the adoption of the Directive.558 Furthermore, it follows from Article 15(3) of the Long Term Residents’ Directive 2003/109/EC that the term ‘integration measure’ encompasses other measures besides attending language courses. The drafting history of the Directive supports the conclusion that the term ‘integra- 37 tion measure’ encompasses pre-entry language tests. Although the Dutch language requirements entered into force on 15 March 2006, the Dutch Government had plans to introduce pre-entry integration tests since 2002, i. e. at a time when the Directive was still negotiated.559 It is rather unlikely that the Dutch Government, at a time when it was preparing legislation for pre-entry integration tests, would have accepted a Directive which would have excluded such measures, all the more as at the time unanimity was required in the Council in order for the Directive to be adopted; thus the Netherlands and Germany could have easily blocked the adoption of the Directive. Compliance with integration measures hints to a more process orientated interpreta- 38 tion than the more result focusing term ‘condition’. Hence, one may argue that ‘integration measure’ indicates cooperation and participation rather than success. However, adequate tests might in some situations be a reasonable way to specify effective compliance with pre-entry integration measures. Thus, with regard to the term ‘measure’ and especially with regard to Article 4(1) (‘conditions’) it seems that Article 7(2) allows only language skills at a low level which are achievable without major obstacles to be required before entry. Therefore, Level A 1 which is the lowest language 551 Groenendijk, EJML 2006, p. 215, 224; Go ¨ bel-Zimmermann, Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik 2008, p. 169, 173. 552 Go ¨ bel-Zimmermann, Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik 2008, p. 169, 173. 553 Walter, Familienzusammenfu ¨ hrung in Europa, p. 180, note 769. 554 Walter, Familienzusammenfu ¨ hrung in Europa, p. 180. 555 See Thym, Long Term Residents Directive 2003/109/EC, Article 5 MN 11. 556 For example the requirement of ‘stable and regular resources’ in the Long Term Residents Directive 2003/109/EC encompasses evidence that the person concerned has made payments to a pension system over 60 months, Council doc. 7393/1/03 REV 1 of 14 March 2003, p. 2, whereas the same term in Article 7(1)(c) of the Directive cannot be interpreted in the same way. 557 Hailbronner, Zeitschrift fu ¨ r das Gesamte Familienrecht 2008, p. 1583, 1588. 558 Hauschild, Zeitschrift fu ¨ r Ausla¨nderrecht und Ausla¨nderpolitik 2003, p. 266. 559 Groenendijk, EJML 2006, p. 215, 223.

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level provided for by the CEFR560 seems to be the upper limit of what can be required. Otherwise a performance obligation might fail its purpose to contribute to the success of family reunification561. Article 7(2) allows restrictive measures only to the extent necessary to provide the basic conditions to integrate into the society of the host state.562 Member States must be given a discretion to define such integration concepts and the necessary measures to meet the basic requirements for a successful integration. Necessary integration measures should be accessible, free or at least affordable,563 and adjusted to individual needs, including gender specific needs (e. g. childcare facilities).564 39 There have been several endeavours to clarify the compatibility of abroad integration measures before the ECJ. In the Imran case565 the Dutch authorities granted a permit to the Afghan women whose husband had initiated the case. Thus, the ECJ deemed a ruling unnecessary. However, in its Statement to the case the Commission took up the clear position of holding the disputed pre-entry language requirement incompatible with Article 7(2).566 This convinced the German Bundesverwaltungsgericht (Federal Administrative Court) that it had to refer a respective case to the ECJ if the German authorities had not had also granted a visa and thereby made a preliminary ruling obsolete.567 The same constellation could be observed in the Ayalti case.568 This conduct may be identified as a ‘covert strategy of selective lenience’ of the national administrations aiming at postponing an ECJ decision.569 In 2014 the ECJ missed the chance of deciding the question of how to interpret Art. 7(2). 40 In the Dogan case570 a preliminary ruling was requested on the admissibility of preentry language requirements under the EU-Turkey Association and Article 7(2). The court held the pre-entry test invalid as regards the EU-Turkey Association Agreement but did not rule on the compatibility with Article 7(2). The Advocate General commented on Article 7(2)571 confirming the interpretation of Article 7(2) allowing integration measures before admission.572 He pointed out the separate meanings of the terms ‘integration condition’ and ‘integration measure’ by qualifying the former more onerous than the later573 and concluded from the missing requirement of evidence in Article 7(2) that the integration measures ‘cannot pursue the aim of selecting the persons who may exercise their right of reunification, as such selection is the aim of the criteria and conditions laid down in Article 7(1).’ He stated that the integration measures ‘must essentially be intended to facilitate integration in the Member States’ and that the term ‘integration measures’ is broad enough to encompass obligations to achieve a certain result if the proportionality requirement and the effectiveness of the directive is not 560 Common European Framework of Reference for Languages (CEFR). More information is available at: www.coe.int/lang-CEFR [last accessed 16 February 2015]. 561 Commission Communication, COM(2014) 210 final, p. 16. 562 See the somewhat stricter definition Commission Communication, COM(2014) 210 final, p. 16. 563 See AG Kokott, K and A, C-153/14, EU:C:2015:186, paras 54–55 holding that fees and the charging of them may not ‘prevent the person intending to join his family from exercising the right to family reunification’. 564 Commission Communication, COM(2014) 210 final, p. 16. 565 ECJ, Mohammad Imran, C-155/11, EU:C:2011:387. 566 Commission Statement, Sj.g(2011)540657 of 4 May 2011. 567 German Bundesverwaltungsgericht (Federal Administrativ Court), Decision of 28 October 2011, case 1 C 9.10 explicitly referring to the Commission Statement. 568 ECJ, Ayalti, C-513/12, EU:C:2013:210 569 Block/Bonjour, EJML 2013, p. 221. 570 ECJ, Dogan, C-138/13, EU:C:2014:2066. 571 AG Mengozzi, Dogan, C-138/13, EU:C:2014:287, para 44 et seqq. 572 AG Mengozzi, Dogan, C-138/13, EU:C:2014:287, para 48. 573 AG Mengozzi, Dogan, C-138/13, EU:C:2014:287, para 52.

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undermined.574 He did not plead for a general incompatibility of language requirements but demanded the possibility of exceptions based on an individual examination.575 The ECJ held that ‘the grounds set out by the German Government, namely the prevention of forced marriages and the promotion of integration, can constitute overriding reasons in the public interest’ but national provisions may not go beyond ‘what is necessary in order to attain the objective pursued’ and have to take account of the specific circumstances of each case.576 Thus, the ECJ indicates that when it comes to the consideration of private and public interests within a proportionality assessment, prevention of forced marriages and the promotion of integration (which are also mentioned in Article 4(5)) are possible reasons for a justification. Moreover, the ECJ does not ban language requirements entirely but only requests an individual evaluation of all particular circumstances of the case. The conclusion in the Dogan case that the German regulations are unproportional might be based on an unduly fragmentary analysis of the German legal framework ignoring case law allowing for exceptions.577 However, in the absence of an explicit ruling on Article 7(2) its material scope remained vague. In K and A578 the ECJ finally decided how Article 7(2) is to be interpreted. He held 41 that ‘Member States may require third country nationals to pass a civic integration examination […] which consists in an assessment of basic knowledge both of the language of the Member State concerned and of its society and which entails the payment of various costs, before authorising that national’s entry into and residence in the territory of the Member State for the purposes of family reunification, provided that the conditions of application of such a requirement do not make it impossible or excessively difficult to exercise the right to family reunification.’579 Thus, the ECJ clarified most of the exhaustively debated issues of Article 7(2). Firstly, Article 7(2) allows pre-entry integration measures.580 Secondly, such measures may relate to the knowledge of the language as well as to the society of the Member State.581 This knowledge is considered to facilitate communication and labour market access, encourage integration and is declared ‘undeniably useful for establishing connections with the host Member State’.582 Thirdly, level Complementing the ECJ also shed light on the restrictions of such measures. The 42 ECJ emphasized once more that the first subparagraph of Article 7(2) is an exception of the general rule of authorising family reunification, hence, it has to be interpreted strictly.583 Member States may not use measures undermining the objective and effectiveness of the Directive, which is to promote family reunification.584 National transpositions of Article 7(2) have to comply with the principle of proportionality and may not make it impossible or excessively difficult to exercise the right to family reunification.585 A requirement may not exceed what is necessary to achieve the aims of the Directive. The ECJ held that this would be the case if the application of the requirement would systematically prevent family reunification, even if the willingness 574

AG Mengozzi, Dogan, C-138/13, EU:C:2014:287, paras 53 and 56. AG Mengozzi, Dogan, C-138/13, EU:C:2014:287, para 62. 576 ECJ, Dogan, C-138/13, EU:C:2014:2066, para 38 (emphasis added). 577 Thym, Zeitschrift fu ¨ r Ausla¨nderrecht und Ausla¨nderpolitik 2014, p. 306. 578 ECJ, K and A, C-153/14, EU:C:2015:453. 579 ECJ, K and A, C-153/14, EU:C:2015:453, para 72. 580 ECJ, K and A, C-153/14, EU:C:2015:453, para 49. 581 ECJ, K and A, C-153/14, EU:C:2015:453, para 53. 582 ECJ, K and A, C-153/14, EU:C:2015:453, paras 53–54. 583 ECJ, K and A, C-153/14, EU:C:2015:453, para 50. 584 ECJ, K and A, C-153/14, EU:C:2015:453, para 50. 585 ECJ, K and A, C-153/14, EU:C:2015:453, paras 51 and 72. 575

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to pass the examination has been demonstrated and efforts to achieve that objective have been made, but the integration examination nevertheless has been failed.586 Thus, while generally admitting examinations, the ruling determines that failing the examination may not automatically lead to an exclusion of the right to family reunification. Demonstrating willingness and making efforts might be sufficient for approval. Measures under Article 7(2) are not allowed to be used as a filtering mechanism to identify persons able to exercise their family reunification rights, but have to aim at facilitating integration.587 Moreover, in line with Article 17, the specific individual circumstances must be taken into account when assessing the ability to fulfil the requirements. This may relate to age, illiteracy, level of education, economic situation or health.588 This might legally be done with a hardship clause. However, a hardship clause that only applies to very special circumstances rendering the person permanently unable to pass the examination, like the Dutch one referred to in the case, is insufficient.589 Finally, the ECJ straightened out that Member States are generally free to charge for integration measures, as long as the costs are proportionate (see above MN 30).590

4. Compatibility of Article 7(2) and of national pre-entry integration requirements with Article 8 ECHR, Articles 5 and 17 of the Directive The Directive must be interpreted and applied in accordance with Article 8 ECHR,591 since the ECHR is recognised as a part of EU law which has to be safeguarded by virtue of Article (3) TEU. Article 7(2) was not contested by the Parliament in its claim for annulment.592 However, the principles established by the ECJ’s judgment in this case on the compatibility of integration conditions for minor children (Article 4(1)) with Article 8 ECHR593 may be used in order to determine whether Article 7(2) is compatible with Article 8 ECHR. 44 The ECJ largely referred to the established case-law of the ECtHR. According to the ECtHR 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’594 and ‘a State has the right to control the entry of nonnationals into its territory’ (see above Article 1 MN 21).595 The ECtHR requires that ‘regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the Community as a whole; and in both contexts the State enjoys a certain margin of appreciation.’596 Therefore, when regulating immigration matters the legislator must have regard not only to the public interests of integration and immigration control, but also to the family ties of persons living in the Member State.597 Admission for family reunification will generally depend on whether admission 43

586

ECJ, K and A, C-153/14, EU:C:2015:453, 56. ECJ, K and A, C-153/14, EU:C:2015:453, paras 57 588 ECJ, K and A, C-153/14, EU:C:2015:453, para 58 and 60. 589 ECJ, K and A, C-153/14, EU:C:2015:453, para 61–63. 590 ECJ, K and A, C-153/14, EU:C:2015:453, para 64. 591 Groenendijk, EJML 2006, p. 215, 219. 592 ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 62. 593 ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 62. 594 ECtHR, Judgment of 19 February 1996, No. 23218/94, Gu ¨ l v Switzerland, para 38. 595 ECtHR, Judgment of 28 May 1985, No. 9214/80, 9473/81 and 9474/81, Abdulaziz, Cabales and Balkandali v The United Kingdom, para 67; Judgment of 19 February 1996, No. 23218/94, Gu¨l v Switzerland, para 38. 596 ECtHR, Judgment of 28 November 1996, No. 21702/93, Ahmut v The Netherlands, para 63; Judgment of 19 February 1996, No. 23218/94, Gu¨l v Switzerland, para 38; ECtHR, Judgment of 1 December 2005, No. 60665/00, Tuquabo-Thekle v The Netherlands, para 42. 597 Hailbronner, Zeitschrift fu ¨ r das Gesamte Familienrecht 2008, p. 1583, 1586. 587

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of the foreigner ‘would be the only way … to develop family life’598 or at least the most adequate way to develop family life599 (regarding the jurisprudence of the ECtHR see above Article 1 MN 21 et seqq.). Only in circumstances which correspond to the situations underlying the Sen600, Tuquabo-Tekle601 and Rodrigues da Silva and Hoogkamer602 judgments, a right to family reunification has been deduced from Article 8 ECHR. These guidelines also need to be respected by the European legislator.603 With regard to Article 4(1) the ECJ has held that the provision as such does not 45 infringe Article 8 ECHR but merely preserves the Member States a margin of appreciation in immigration matters.604 Integration is a legitimate aim and the provision does not authorize Member States to adopt implementing provisions that would be contrary to Article 8 ECHR.605 The ECJ attached paramount importance to the fact that, in its view when implementing Article 4(1), Member States must still comply with the principles mentioned in Articles 5(5) and 17.606 The fact that the concept of integration is not defined cannot be interpreted as authorising the Member States to employ that concept in a manner contrary to general principles of Union law, in particular to EU fundamental rights. The Member States which wish to make use of the derogation 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 in order to examine the specific situation of a child over 12 years of age arriving independently from the rest of his or her family. Consequently, the final subparagraph of Article 4(1) cannot be interpreted as authorising the Member States, expressly or impliedly, to adopt implementing provisions that would be contrary to the right to respect for family life.607 These arguments are applicable to Article 7(2) as well. As a consequence Article 7(2) 46 may not be held incompatible with Article 8 ECHR. Member States are obliged not to implement stipulations in the Directive in a way contrary to general principles of EU law.608 Integration measures abroad do not as such violate Article 8 ECHR as there is no unconditional right to family reunification. Whether the obligation to draw a ‘fair balance’609 between the private interests of family reunification and legitimate public interests to promote integration requires rules on exception and a hardship regime, which provides flexibility and a certain discretion deviating from such requirements as the passing of a test of basic language skills is a matter of legal and political dispute. It is argued that integration measures in the host country may be more effective in the host country than pre-departure integration measures abroad.610 In any case national law should allow for flexibility to ensure that the authorities may on a case-by-case basis and in view of the specific circumstances of the case grant family reunification even where 598

ECtHR, Judgment of 19 February 1996, No. 23218/94, Gu¨l v Switzerland, para 39. ECtHR, Judgment of 21 December 2001, No. 31465/96, Sen v The Netherlands, para 40; Judgment of 1 December 2005, No. 60665/00, Tuquabo-Thekle v The Netherlands, para 47. 600 ECtHR, Judgment of 21 December 2001, No. 31465/96, Sen v The Netherlands. 601 ECtHR, Judgment of 1 December 2005, No. 60665/00, Tuquabo-Thekle v The Netherlands. 602 ECtHR, Judgment of 31 January 2006, No. 50435/99, Rodrigues da Silva and Hoogkamer v The Netherlands. 603 Thym, ‘Europa ¨ischer Grundrechtsschutz und Familienzusammenfu¨hrung’, Neue Juristische Wochenschrift (2006), p. 3249, 3252. 604 ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 66. 605 ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 71 606 ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 66. 607 ECJ, Parliament v Council, C-540/03, EU:C:2006:429, paras 70–71. 608 ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 70. 609 ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 54. 610 Commission Communication, COM(2014) 210 final, p. 16. 599

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integration requirements are not met.611 National legislation which allows for automatic refusal of family reunification as a result of a failed integration test may infringe Article 8 ECHR612 and Articles 5(5) and 17 (see below Article 17, MN 4 et seqq.).613 47 The obligation of Member States to draw a fair balance implies that national pre-entry language requirements affecting the rights under Article 8 ECHR must be proportional. The ECJ has confirmed that integration is a legitimate aim encompassed by Article 8(2) ECHR.614 When determining whether integration requirements are proportional to the aim of integration the national legislator enjoys a margin of appreciation in immigration matters. The appreciation that pre-entry integration requirements are necessary in order to facilitate integration is not as such arbitrary. In particular circumstances such as the S en,615 Tuquabo-Tekle616 and Rodrigues da Silva and Hoogkamer617 cases exceptions may be required. However, under circumstances typically prevailing in cases of family reunification a proper balance of interests justifies language requirements. 48 In order to impose pre-entry integration measures such as language or integration tests618, there must be reasonable possibilities to fulfil such requirements under normal conditions in an acceptable time frame.619 The German Federal Administrative Court has declared a period of 2–3 years for acquiring the necessary language skills to be acceptable.620 Language courses and integration tests must be accessible and affordable.621 The conclusions as to the availability of language training facilities, of sufficient infrastructures to obtain language skills by self-organised training through the media,622 of transport facilities to travel from distant regions to places where language courses are available,623 design and organisation of language courses, provided training material, fees, venue, language level required etc. are a matter of legal policy rather than a matter of Article 8 ECHR. 49 The German Bundesverwaltungsgericht (Federal Administrative Court) has decided that the German legislation which does not contain a general hardship clause but provides for specific exceptions in case of illness and similar circumstances is compatible with the principle of proportionality under Article 8 ECHR if acquisition of the necessary language skills in a particular case not covered by these exceptions is not possible for reasons which are outside the sphere of responsibility of the family member the obligation to proper balancing of interests can be satisfied by way of giving the family member short-term entry in order to acquire the necessary language skills.624 611

Commission Communication, COM(2014) 210 final, p. 16. Wiesbrock, Legal migration to the EU, p. 524. 613 Commission Communication, COM(2014) 210 final, p. 16; Markard/Truchseß, Neue Zeitschrift fu ¨r Verwaltungsrecht 2007, p. 1025, 1027. 614 ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 66. 615 ECtHR, Judgment of 21 December 2001, No. 31465/96, Sen v The Netherlands. 616 ECtHR, Judgment of 1 December 2005, No. 60665/00, Tuquabo-Thekle v The Netherlands. 617 ECtHR, Judgment of 31 January 2006, No. 50435/99, Rodrigues da Silva and Hoogkamer v The Netherlands. 618 Marx, ‘Die Verdeutschung der EU-Richtlinien zum Aufenthalts- und Asylrecht’, Informationsbrief Ausla¨nderrecht (2007), p. 413, 416–417. 619 Oberverwaltungsgericht (Higher Administrative Court) Berlin-Brandenburg, Judgment of 28 April 2009, case OVG 2 B 6.08, p. 18; Marx, ‘Die Verdeutschung der EU-Richtlinien zum Aufenthalts- und Asylrecht’, Informationsbrief Ausla¨nderrecht (2007), p. 413, 416. 620 German Bundesverwaltungsgericht (Federal Administrative Court), Judgment of 30 March 2010, case 1c 8.09, para 49. 621 Commission Report, COM(2008) 610 final, p. 7. 622 Bundestag-Drucksache (German Parliamentary doc.) 16/11997 of 16 February 2009, answer to question 8(e), p. 8. 623 Go ¨ bel-Zimmermann, Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik 2008, p. 169, 172. 624 German Bundesverwaltungsgericht (Federal Administrative Court), Judgment of 30 March 2010, case 1c 8.09, para 46. 612

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Among other situations of exceptional hardship, cognitive abilities, vulnerability of persons, and inaccessibility of teaching or testing facilities should be considered.625 The UK Supreme Court recently also found that a rule requiring the spouse to pass an English language competence test before entering the UK does not infringe Article 8 ECHR.626 However, the respective guidance might be too narrow to prevent disproportionate refusals and therefore incompatible with Article 8 ECHR. Especially since lack of literacy or education is not accepted as a exceptional circumstance in the guidance.627

5. Compatibility of national exception clauses with the principle of nondiscrimination National laws of some EU Member States exempt persons from specific western 50 countries, spouses of highly qualified persons and spouses of nationals from certain mainly western countries from pre-entry integration requirements.628 These exception clauses have been criticized as unjustified indirect discrimination on grounds of origin.629 The German Government has justified the exemption of applicants being married to sponsors of certain nationalities with the economic relations of Germany and different immigration patterns.630 It might be estimated that nationals of countries with similar economic conditions usually do not raise concerns of irregular migration. Preferential treatment of spouses of highly qualified persons has been explained with the purpose of current migration policy to foster immigration of highly qualified workers.631 Since Member States enjoy a wide margin of appreciation in immigration matters, no conflict arises with the provisions of the Directive.632 In the above-mentioned judgment the German Federal Administrative Court has also 51 elaborated on the question of discrimination arguing that foreign policy considerations which have the effect of treating nationals of certain countries more favourably, are within the margin of appreciation of the Member State.633

IV. Special rules for refugees For refugees and their family members application of Article 7 is limited by Chapter 52 V, especially by Article 12. According to Article 12(1), Article 7 is generally not applicable to family members mentioned in Article 4(1), i. e. the spouse and minor children. Article 12 contains several optional derogation clauses from this general rule: Article 7(1) may be applied ‘if the application for family reunification is not submitted within a period of three months after the granting of the refugee status’ (Article 12(1)). Article 7(1) and (2) may be applied in case family reunification is possible in a third country (Article 12(1), see below Article 12 MN 14). With regard to integration measures, Article 7(2) contains a special rule. According 53 to that provision in the case of ‘refugees and/or family members of refugees referred to in Article 12, the integration measures […] may only be applied once the persons 625

Commission Communication, COM(2014) 210 final, p. 16. UK Supreme Court, Judgment of 18 November 2015, [2015] UKSC 68. 627 Ibid. paras 17. 628 See Section 30(1) German Aufenthaltsgesetz (Residence Act). 629 Human Rights Watch, The Netherlands: Discrimination in the Name of Integration (HRW, 2008), p. 26, 30; Markard/Truchseß, Neue Zeitschrift fu¨r Verwaltungsrecht 2007, p. 1025, 1027. 630 Bundestag-Drucksache (German Parliamentary doc.) 16/5065 of 23 April 2007, p. 175. 631 Bundestag-Drucksache (German Parliamentary doc.) 16/5065 of 23 April 2007, p. 174. 632 Hailbronner, Zeitschrift fu ¨ r das Gesamte Familienrecht 2008, p. 1583, 1588. 633 German Bundesverwaltungsgericht (Federal Administrative Court), Judgment of 30 March 2010, case 1c 8.09 para 60. 626

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concerned have been granted family reunification’. It follows from Article 12(1), that the reference in Article 7(2) only concerns family members mentioned in Article 4(1), i. e. spouse and minor children. Therefore, integration measures may be applied to refugees and other family members not mentioned in Article 4(1) even before family reunification has been granted. At first glance the second subparagraph of Article 7(2) seems to privilege refugees and the members of the core family. However, if read in conjunction with Article 12 it follows that it adds a further option to derogate from the general rule mentioned in Article 12(1) by allowing Member States to apply integration measures referred to in Article 7(2) to refugees and their family members after they have been granted family reunification.634

Article 8 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. By way of derogation, where the legislation of a Member State relating to family reunification in force on the date of adoption of this Directive takes into account its reception capacity, the Member State may provide for a waiting period of no more than three years between submission of the application for family reunification and the issue of a residence permit to the family members. Content I. II. III. IV.

General remarks, purpose and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Two-year qualifying period and lawful stay (Article 8(1)). . . . . . . . . . . . . . . . . Calculation of the two-year qualifying period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prohibition of strict waiting periods or quota systems . . . . . . . . . . . . . . . . . . . . .

1 8 11 20

I. General remarks, purpose and drafting history Article 8 provides for two different options to impose qualifying and/or waiting requirements for family reunification. While the first option (Article 8(1)) does not provide for a proper waiting period, the second option (Article 8(2)) allows Member States to defer family reunification for a waiting period of up to three years between application for and issue of a residence permit for family members. The second option necessarily implies a separation of an existing marriage or family relationship while the first option does not necessarily amount to a separation of up to two years provided that the marriage or family has been established at a time when the sponsor was already staying lawfully in the territory of a Member State. The Article dates back to the Resolution of Immigration Ministers of 1993 on Harmonisation of national policies of family reunion providing for the right of Member States to require the sponsor to be lawfully present for certain periods of time before a spouse is allowed to join the sponsor. 2 The first paragraph provides for a qualifying period in which the sponsor must have ‘stayed lawfully’ in the Member State. Although the second option refers to a time period between submission of the application for family reunification and the issue of a residence permit to the family members irrespective of any length of lawful stay, the effects are overlapping. Article 8(1) in general allows to impose a ‘waiting period’ requiring a certain lapse of time between an application for family reunification and 1

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the issue of a residence permit depending on the date at which the marriage has been concluded. Similarly, making use of the second option generally includes a lawful stay of three years since no application will be admissible on the basis of an unlawful stay. Therefore, the second option is by ‘way of derogation’ (Article 8(2)) an intensification of the less stringent requirement of a lawful stay of up to two years. Since Article 8(2) is subject to an existing legislation of a Member State in force at the adoption of the Directive, the introduction of proper waiting periods for thirdcountry nationals having moved to an EU Member State is of minor practical importance. With the exception of Austria,635 no EU Member State had adopted on 22 September 2003 a legislation imposing waiting periods between submission of an application for family reunification and the issue of a residence permit to a family member based upon the reception capacity of the respective Member State. However, various Member States have used the first option of a qualifying period of lawful stay as well as other requirements under Article 4(5) (minimum age for spouses) which may have the effect of waiting periods until family reunification is granted. The purpose of qualifying periods of lawful residence is to ensure stability in the sponsor’s residence.636 The ECJ has held that the purpose of Article 8 is ‘to make sure that family reunification will take place in favourable conditions, after the sponsor has been residing in the host State for a period sufficiently long for it to be assumed that the family members will settle down well and display a certain level of integration.’637 Only if a waiting period and its length serves this purpose and respects the principle of proportionality, it is admissible under the Directive.638 Whether this purpose may be achieved by waiting periods is highly questionable. The Directive is not consistent in this regard. Recital 4 of the Directive points out that family reunification itself ‘helps to create sociocultural stability facilitating the integration of third-country nationals in the Member State’. Therefore, postponement of family reunification seems to be at odds with this assumption. The European Convention on the Legal Status of Migrant Workers of 24 November 1977 (see Article 3(4)(b)) provides for a maximum waiting period of only twelve months (Article 12(1) of the Convention). The scope of application of this Convention is limited because to date it has been ratified by only six Member States639 and five third-countries640. The Convention prevents the Member States bound by the Convention from exhausting the options stipulated by Article 8. Contracting Parties to the European Social Charter are obliged to ‘facilitate as far as possible the reunion of the family of a foreign worker permitted to establish himself in the territory’ (Article 19(6) of the Charter). According to the Committee of Independent Experts States Parties may require migrant workers to reside a certain period of time before family reunification is permitted, provided it is not too excessive.641 The Committee has repeatedly taken the view that a three-year waiting period is too 635 Boeles/den Heijer et al., European Migration Law, p. 188. Under Austrian law immigration for the purpose of family reunification is subject to annual quotas. The waiting periods due to the quota system differ from one federal province to another. 636 See Commission Proposal, COM(1999) 638 final, p. 18. 637 ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 98. 638 Commission Communication, COM(2014) 210 final, p. 17. 639 France, Italy, The Netherlands, Portugal, Spain, Sweden. The state of ratification is available at: http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=093&CM=8&DF=01/12/2009&CL=ENG [last accessed 12 January 2015]. 640 Albania, Moldova, Norway, Turkey, Ukraine. 641 Conclusion XV-1, p. 312. The Conclusions are available at: http://www.coe.int/t/dghl/monitoring/ socialcharter/conclusions/ConclusionsYear_en.asp [last accessed 12 January 2015].

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long.642 A one-year waiting period was accepted.643 Assuming that the recommendations of the Committee can be used as a means of interpreting Article 19(6) of the Charter, Contracting Parties to the Charter may be prevented from adopting a three year qualifying period towards workers coming from another State Party. This may be relevant for Member States which have ratified the Charter.644 7 Apart from some minor language revisions the drafting history reveals three significant changes: The Commission had originally suggested a one-year qualifying period arguing at the time that ‘otherwise the exercise of the right to family reunification would be devoid of substance’.645 Nevertheless, on request of the Member States the qualifying period was extended to a two-year period by the third proposal. The waiting period of three years mentioned in Article 8(2) was inserted on request of Austria. Finally, former Article 8(2) containing special rules for refugees has been shifted to Article 12 (2).

II. Two-year qualifying period and lawful stay (Article 8(1)) Member States may on an optional basis 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’ (Article 8(1)). The same requirement of a lawful stay applies to Article 8(2), as the provision is a derogation from Article 8(1). Both qualifying periods do not apply to refugees (Article 12(2)). 9 If Member States opt in favour of qualifying periods of lawful stay they are obliged to take into account any period of time during which a third-country national has resided in accordance with national law on the territory of the Member State. The term ‘lawful stay’ is generally determined as residence on the basis of a residence permit or any other title allowing the residence of a third-country national on the territory of a Member State. 10 It is questionable whether Member States are entitled to disregard periods of lawful stay of a third-country national allowed for exclusively temporary purposes such as tourism or temporary humanitarian admission. Article 8 is to make sure that family reunification will take place in favorable conditions and display a certain level of integration.646 Therefore, one might conclude that periods of time of a provisional character do not qualify as ‘lawful stay’ in the sense of Article 8(1). It has to be taken into account, however, that in any case Article 3 (1) requires that the applicant is in possession of a residence permit of at least one year validity which is open to prolongation, and that the Directive distinguishes between lawful stay and residence permit (see Article 2(d)). Therefore, periods of a lawful stay on the basis of short-term visa as well as humanitarian residence permits cannot be disregarded. Member States, however, are not obliged to recognise times of toleration and postponed return.647 In 8

642 European Social Charter Committee of Independent Experts, Conclusions XIII-2, p. 64 and Article 19(6) of Conclusions II and III on Germany. 643 European Social Charter Committee of Independent Experts, Article 19(6) of Conclusions IV and V on Germany 644 The European Social Charter has been ratified by 27 States, among them the old 15 Member States and all new Member States with the exception of Bulgaria, Estonia, Lithuania, Romania and Slovenia. The state of ratifications is available at: http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=035& CM=8&DF=01/12/2009&CL=ENG [last access: 12 January 2015]. The ECJ has emphasised that according to Article 3(4) for Member States bound by the European Social Charter the Directive is without prejudice to more favourable rules, ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 107. 645 Commission Proposal, COM(1999) 638 final, p. 18. 646 ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 92. 647 Commission Communication, COM(2014) 210 final, p. 17.

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cases involving minor children waiting periods are to be kept as short as strictly necessary for achieving the purpose of the provision.648

III. Calculation of the two-year qualifying period Member States may require that the lawful stay of a period up to two years is a continuous one. The requirement of continuity follows from the purpose of the provision to ensure a certain stability of residence of the sponsor and a certain amount of integration before family reunification takes place. Article 8(1) does not make provision as to whether short interruption periods caused, for instance, by temporary absence (such as business trips, holidays or family visits) from the territory or periods of unlawful residence due to delayed application for a prolongation of a residence permit are prejudicial to the requirement of a lawful stay as provided for by national legislation. Provided that the purpose of reaching a certain level of stability and integration is not jeopardized, interruptions may be allowed.649 Member States shall apply the same rules as are applied in national immigration law with regard to the acceptance of short interruptions of lawful stay. As a general rule, emerging from the practice of Member States, interruptions may be considered as irrelevant which do not undermine the achieved state of integration. Whether longer periods of absence result in a reset of the lawful stay requirement must be decided on the basis of generally applicable national practices and in accordance with the principle of proportionality650 The qualifying period under Article 8(1) starts with the first day of lawful stay of the sponsor in the territory of the EU Member State. Depending on the national legislation this may be the date of entry of the sponsor651 or the date on which the sponsor’s lawful stay as defined above began. The qualifying period may not exceed two years. A considerable hidden additional ‘waiting period’ is contained in Article 5(4) which grants Member States a nine-months examination period with the possibility of extension.652 This examination period starts with the date of submission of the application. However, the application may already be submitted before the two year period is fulfilled. The phrase ‘before having his/her family members join him/her’ implies that the application may be filed, but Member States may delay granting family reunification until the period determined by their legislation expires.653 The qualifying period mentioned in Article 8(1) cannot be extended to three years on the basis of Article 3(1) which requires the sponsor to have a residence permit with a validity of one year.654 Both provisions concern different aspects. Whereas the qualifying period of Article 8(1) requires an actual lawful stay of the sponsor, the requirement of Article 3(1) concerns only the validity of the sponsor’s residence title and its character as a residence title open to permanent residence. Therefore, periods before a sponsor acquires a resident permit valid for at least one year should also be included in the calculation of the lawful stay.655 648

Commission Communication, COM(2014) 210 final, p. 17. Commission Communication, COM(2014) 210 final, p. 17 650 Peers, EU Justice and Home Affairs Law, p. 470. 651 Commission Proposal, COM(1999) 638 final, p. 18; Commission Communication, COM(2014) 210 final, p. 18. 652 Walter, Familienzusammenfu ¨ hrung in Europa, p. 178. 653 Commission Report, COM(2008) 610 final, p. 8. 654 Hailbronner, Zeitschrift fu ¨ r das Gesamte Familienrecht 2005, p. 1, 2. 655 Commission Communication, COM(2014) 210 final, p. 17. 649

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The Directive does not distinguish between marriages concluded before and marriages concluded after a sponsor has taken up lawful residence. One may argue that national legislation distinguishing between the two categories of marriage constitutes a violation of a general principle of non-discrimination.656 However, the ECJ has not held a general principle of non-discrimination applicable, but only the principle of nondiscrimination on grounds of age.657 Therefore it can be argued that it is, in principle, within each Member State’s discretion whether and under what conditions the Member States makes use of an option laid down in Article 8, provided that the protection of family and children is duly taken into account. Thus, Member States would be permitted to distinguish between Third Country nationals in the application of family reunion restrictions admissible under the Directive as long as such distinctions are in compliance with the prohibition of discrimination on account of gender, age and the other criteria laid down in Articles 21 and 23 CFR and referred to in recital 5. If there is no general principle of equal treatment of third-country nationals applicable beyond such specific discrimination criteria, Member States may make limited use of an optional right available under the Directive and apply the Directive differently between different groups and categories of Third Country Nationals.658 Following this argumentation, distinctions may for instance be justified to prevent marriages of convenience that are considered to be more likely when the marriage is concluded when a thirdcountry national is already residing in a Member State since e. g. Article 16(2) and (4) indicate that the prevention of misuse is generally a legitimate reason.659 17 Nonetheless, this reasoning may be challenged. ECJ decided that, with the exception of Article 9(2), the rules in the Directive apply to marriages concluded before and after a sponsor took up residence in the Member State.660 The decision was made with regard to stable and regular resources – Article 7(1)(c) (see above Article 7 MN 21). Even though the courts finding are not restrictively formulated, it might be doubted if the specific context of the decision allows to confer the verdict (not to distinguish between family reunification and family formation) to other stipulations in the Directive. The Commission suggested that the option to require a waiting period may not be used ‘solely’ to prevent possible misuse but only to require a certain amount of stable residence and integration to make sure that family reunification take place in favourable conditions.661 Furthermore, the Commission and the Advocate General Sharpston in her opinion in the Chakroun case pointed out that there are more suitable means for deterring marriages of convenience than the denial of family reunification.662 The ECJ held that Article 8 ‘preserves a limited margin of appreciation for the Member States by permitting them to make sure that family reunification will take place in favourable conditions’.663 Since such favourable conditions relate to the situation of the sponsor 16

656

See Walter, Familienzusammenfu¨hrung in Europa, p. 337. ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 74. 658 Martin, ‘Comments on N. v. Inspecteur van de Belastingdienst Oost/kantoor Almelo (Case C-470/ 04 of 7 September 2006), European Parliament v. Council(Case C-540/03 of 27 June 2006) and TasHagen and Tas (Case C-192/05 of 26 October 2006)’, EJML 9 (2007), p. 141, 149. 659 Hailbronner/Carlitz, in: Hailbronner (ed), EU Immigration and Asylum Law, 1st Edition (Beck, 2010), Article 7 MN 17. 660 ECJ, Chakroun, C-578/08, EU:C:2010:117, paras 61 et seqq. 661 Commission Communication, COM(2014) 210 final, p. 18. The remarks are contradictory on this point. While stating that the sole purpose of Article 8 is to require a certain amount of stable residence and integration to make sure that family reunification will take place in favourable conditions, the Commission also annotates that preventing misuse may not be used as the sole purpose for requiring a waiting period. 662 Commission Communication, COM(2014) 210 final, p. 18; AG Sharpston, Chakroun, C-578/08, EU:C:2009:776, paras 52–53. 663 ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 98. 657

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and do not depend on the moment of the conclusion of the marriage it may be argued that a respective differentiation exceeds this margin of appreciation and is therefore inadmissible. Thus, it depends on the assessment of the relationship of the explicit stipulations regarding fraud and marriages of convenience (especially in Article 16(2) and (4)) and Article 8. On the one hand, they clarify that the prevention of marriages of convenience and fraud are considered as legitimate aims, on the other hand, these specific provisions indicate that Article 8 has a distinctive regulatory content. By way of derogation Member States whose legislation takes their reception capacity 18 into account may provide for a waiting period of no more than three years between the application for reunification and the issue of a residence permit to the family members. The three-year waiting period was inserted in order to maintain the Austrian national quota system.664 The phrase ‘by derogation’ mentioned in Article 8(2) is unclear since both periods apply to different situations: in the case of Article 8(1) all times of lawful stay accumulated before the application was submitted are taken into account.665 In contrast, the three-year waiting period of Article 8(2) is not based upon an accumulation of periods of lawful stay666. In effect, however, the derogation refers to the lawful stay requirement due to the fact that lawful stay will be required before an application for family reunion can be submitted. The provision is subject to a standstill clause referring to the date of adoption of the 19 Directive, i. e. 22 September 2003. As the Commission pointed out in its 2008 evaluation report on the Directive, the standstill clause precludes the introduction of the notion of reception capacity as a condition in national law after this date.667 Austria is the only Member State which had a corresponding national provision by the time of adoption.668

IV. Prohibition of strict waiting periods or quota systems Article 8 was subject to the claim for annulment brought before the ECJ by the 20 European Parliament in 2003. The Parliament submitted that ‘(T)[t]his article, which does not require applications to be considered on a case-by-case basis, authorises the Member States to retain measures which are disproportionate in relation to the balance that should exist between the competing interests.’669 Advocate General Kokott had found that Article 8 was contrary to Community law as 21 in her view ‘human rights must be protected effectively, and the law has to be clear’ and Article 8 of the Directive is ‘liable at least to be misunderstood’ as it by not taking ‘account of hardship situations increases the risk that human rights will be infringed.’670 The Advocate General argued that […] the meaning of the word ‘may’ is that Member States are empowered by the Community legislature to provide for waiting periods of up to two or even a further three years. If a Member State were to transpose that provision, as it were, onedimensionally, with disregard for its human-rights obligations, national rules on waiting periods would also be enacted which failed to allow for the possibility, required by the case-law of the European Court of Human Rights, of having regard to hardship 664

Groenendijk, EJML 2006, p. 215, 220. Wiesbrock, Legal migration to the EU, p. 244. 666 Ecker, Familienzusammenfu ¨ hrung, p. 88, note 231. 667 Commission Report, COM(2008) 610 final, p. 8. 668 Labayle/Pascouau, Odysseus Synthesis Report on Directive 2003/86/EC, p. 111. 669 ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 91. 670 AG Kokott, Parliament v Council, C-540/03, EU:C:2005:517, para 105. 665

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situations – and the national authorities would have to apply them. Nor would there be any scope for applying Article 5(5) and Article 17 the Directive […].671 22 Nevertheless, the ECJ found no infringement of the right to respect for family life as guaranteed in Article 8 ECHR nor in the obligation to have regard to the best interests of children, either in itself or in that it expressly or impliedly authorises the Member States to act in such a way. Like in the case of Article 4(1)672 the ECJ argued that Article 8 ECHR does not grant a right to family reunification and that Article 8 ‘does not … have the effect of precluding any family reunification, but preserves a limited margin of appreciation for the Member States.’673 Even though Article 8 might defer family reunification for two or three years, the Court considered it as sufficient if in each case the considerations stipulated in Article 17 and Article 5(5) are taken into account. The Court concluded: […] as is apparent from Article 17 of the Directive, duration of residence in the Member State is only one of the factors which must be taken into account by the Member State when considering an application and that a waiting period cannot be imposed without taking into account, in specific cases, all the relevant factors. The […] Member State’s reception capacity, which may be one of the factors taken into account when considering an application, but cannot be interpreted as authorising any quota system or a three-year waiting period imposed without regard to the particular circumstances of specific cases. Analysis of all the factors, as prescribed in Article 17 of the Directive, does not allow just this one factor to be taken into account and requires genuine examination of reception capacity at the time of the application. When carrying out that analysis, the Member States must also have due regard to the best interests of minor children.674 23 Article 17 requires various individual circumstances to be taken into account in any negative decision on family reunification. Thus, an individual assessment of each application is required, precluding a strict waiting period or a strict quota system without regard to the particular circumstances of the case.675 National legislation must ensure that in cases in which Article 8 ECHR requires that family reunification be granted, the national quota does not set an obstacle. In case of a situation similar to that of the Sen and Tuquabo-Tekle judgment, family reunification must be granted despite the quota.676 Therefore, a national norm of transposition must open the possibility to derogate from the waiting period requirement and the quota. Consequently, Member States are not allowed to install a waiting period without reserving the option to deviate from this rule in individual cases.677 Such a case by case approach may be secured by a national provision which allows granting of a residence permit irrespective of the waiting period.678 The Austrian Constitutional Court considered that existing Austrian legislation which allows for family reunification apart from the quota ‘on humanitarian grounds’ is in line with the requirement.679 A national norm of derogation which only 671

AG Kokott, Parliament v Council, C-540/03, EU:C:2005:517, para 103. ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 66. 673 ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 98. 674 ECJ, Parliament v Council, C-540/03, EU:C:2006:429, paras 63 and 99–101. 675 Commission Communication, COM(2014) 210 final, p. 17. 676 Weichselbaum, juridikum 2004, p. 24, 27. 677 Boeles/den Heijer et al., European Migration Law, p. 188. 678 See for example Section 30(2) German Aufenthaltsgesetz (Residence Act). 679 Austrian Verfassungsgerichtshof (Constitutional Court), Judgment of 8 October 2003, case G 119, 120/03-13, p. 22. After its amendment Section 19(2) No 6 of the Austrian Fremdengesetz (Aliens Act) allows for the interpretation to consider family reunification which is required by Article 8 ECHR as a ‘humanitarian ground’ in the sense of Section 19(4) Austrian Fremdengesetz (Aliens Act) which allows for the issuance of a residence title. 672

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accepts dangers for the physical or psychological integrity or life of a person is not sufficient as Article 8 ECHR concerns the maintenance of the family relationship.680 However, it is sufficient if the national provision can be interpreted in a way consistent with Article 8ECHR.681

CHAPTER V Family reunification of refugees Article 9 1. This Chapter shall apply to family reunification of refugees recognised by the Member States. 2. Member States may confine the application of this Chapter to refugees whose family relationships predate their entry. 3. This Chapter is without prejudice to any rules granting refugee status to family members.

Article 10 1. Article 4 shall apply to the definition of family members except that the third subparagraph of paragraph 1 thereof shall not apply to the children of refugees. 2. The Member States may authorise family reunification of other family members not referred to in Article 4, if they are dependent on the refugee. 3. If the refugee is an unaccompanied minor, the Member States: (a) shall authorise the entry and residence for the purposes of family reunification of his/her first-degree relatives in the direct ascending line without applying the conditions laid down in Article 4(2)(a); (b) may authorise the entry and residence for the purposes of family reunification of his/her legal guardian or any other member of the family, where the refugee has no relatives in the direct ascending line or such relatives cannot be traced.

Article 11 1. Article 5 shall apply to the submission and examination of the application, subject to paragraph 2 of this Article. 2. Where a refugee cannot provide official documentary evidence of the family relationship, the Member States shall take into account other evidence, to be assessed in accordance with national law, of the existence of such relationship. A decision rejecting an application may not be based solely on the fact that documentary evidence is lacking.

Article 12 1. By way of derogation from Article 7, the Member States shall not require the refugee and/or family member(s) to provide, in respect of applications concerning 680 Therefore reluctant on the Austrian Verfassungsgerichtshof’s interpretation of ‘humanitarian ground’ in Section 10(4) Austrian Fremdengesetz (Aliens Act): Weichselbaum, juridikum 2004, p. 24, 27. 681 Weh, ‘Ende der Quotenregelung’, juridikum 2004, p. 29, 32.

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those family members referred to in Article 4(1), the evidence that the refugee fulfils the requirements set out in Article 7. Without prejudice to international obligations, where family reunification is possible in a third country with which the sponsor and/or family member has special links, Member States may require provision of the evidence referred to in the first subparagraph. Member States may require the refugee to meet the conditions referred to in Article 7(1) if the application for family reunification is not submitted within a period of three months after the granting of the refugee status. 2. By way of derogation from Article 8, the Member States shall not require the refugee to have resided in their territory for a certain period of time, before having his/her family members join him/her. Content I. General remarks and drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Relationship of Chapter V to the Asylum Qualification Directive 2011/ 95/EU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Scope of application of Chapter V (Article 9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Derogations from Article 4 (Article 10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Derogations from Article 5 (Article 11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI. Derogations from Article 7 (Article 12(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VII. Derogations from Article 8 (Article 12(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 5 6 11 13 17

I. General remarks and drafting history Chapter V (Article 9–12) contains special rules for family reunification of recognised refugees which provide for derogation from the provisions of the Directive (see Article 9(1)). The purpose of Chapter V is to take the refugee’s particular situation into account. The reason for treating them more favourably is that ‘the reasons which obliged them to flee their country […] prevent them from leading a normal family life there’ (recital 8). Insufficient transposition of the provisions creating more favourable rules for refugees has been identified as one of the main implementation problems of the Directive in the 2008 Evaluation Report of the Commission.682 The derogations ‘impose precise positive obligations […] without […] a margin of appreciation’.683 2 Rules for refugees were originally included in each of the relevant provisions of the Directive. The structure was changed by the third proposal where it was decided to create a special Chapter for refugees.684 The structural change was not fully maintained, as can be seen in the second subparagraph of Article 7(2). The options for Member States to derogate from the general rules in favour of refugees were extended by the third proposal. The most important amendment was the option to exclude cases in which family relationships arise after the refugee entered the Member State in Article 9(2). The options mentioned in Article 12(1) were introduced during the final negotiations and were not contained in the earlier proposals.685 3 Chapter V provides for derogations from Articles 4, 5, 7 and 8. No derogation from Articles 6 and 14 is foreseen. Thus family reunification to refugees may be rejected on 1

682

Commission Report, COM(2008) 610 final, p. 14. Commission Communication, COM(2014) 210 final, p. 20 referring to ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 60. 684 Commission Proposal, COM(2002) 225 final, p. 6. 685 Oosterom-Staples, in: Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice?, p. 451, 475. 683

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grounds of public policy, security and health, and access to employment may be limited.686 In this regard, the vagueness of the term ‘public policy’ has been criticised by UNHCR as it might allow rejection of family reunification to refugees without substantive justification.687

II. Relationship of Chapter V to the Asylum Qualification Directive 2011/95/EU In addition to Chapter V, the Asylum Qualification Directive 2011/95/EU contains 4 special rules for refugees. The scope of both directives is partly overlapping. In General, the most favourable provision prevails since the purpose of special rules for refugees is better protection, taking into account their particular situation. Article 23(1) of the Free Movement Directive 2004/83/EC obliges the Member States to ensure that family unity of refugees can be maintained. This provision, unlike Article 4, does not grant an individual right to family reunification. According to Article 23(2) of the Free Movement Directive 2004/83/EC Member States shall ensure that family members of recognised refugees can claim the benefits referred to in Articles 24–34 of the Free Movement Directive 2004/83/EC. Most importantly, Article 24(1) of the Free Movement Directive 2004/83/EC provides that for recognises refugees the initial residence permit must be valid for at least three years and renewable. However, for family members of refugees, Member States may provide that the residence permit is valid for less than three years and renewable (Article 24(1) of the Free Movement Directive 2004/83/EC). Article 13(2) provides for a minimum duration of one year for the first residence permit.

III. Scope of application of Chapter V (Article 9) Chapter V is applicable only to family reunification of recognised refugees as defined 5 by Article 2(b) (see Article 9(1)). Applicants for refugee status (Article 3(a)) and persons enjoying temporary (Article 3(b)) or subsidiary protection (Article 3(c)) or applicants thereof do not fall within the scope of application of the Directive. Optionally, Member States may limit the applicability of preferential rules mentioned in Chapter V to ‘refugees whose family relationships predate their entry’ (Article 9(2)). Preferential treatment of refugees whose family relationship predate their entry to a Member State is thus the minimum standard of the Directive, due to their special vulnerability.688 If Member States make use of the option, family reunification is subject to the usual conditions and procedures as for other third-country nationals.689 When applying the optional restrictions, Member States have to make sure not to undermine the objective of the Directive and the effectiveness thereof and take into account ‘the particular situation of refugees who have been forced to flee their country’.690 According to Article 9(3) the Chapter V is ‘without prejudice to any rules granting refugee status to family members’. Therefore, family members may themselves be granted refugee status under the Asylum Qualification Directive 2011/95/EU. 686

Walter, Familienzusammenfu¨hrung in Europa, p. 204. UNHCR, UNHCR unzufrieden mit neuen EU-Regelungen zur Familienzusammenfu¨hrung, Press Release of 23.September 2003, p. 1, available at: http://www.unhcr.de/archiv/pressemitteilungen/artikel/ d3fcc596aa588c126d17436ddfff8671/unhcr-unzufrieden-mit-neuen-eu-regelungen-zur-familienzusammenf.html [last accessed 17 February 2015]. 688 Commission Proposal, COM(2002) 225 final, p. 9. 689 European Migration Network, Synthesis Report on Family Reunification, p. 24. 690 Commission Communication, COM(2014) 210 final, p. 21. 687

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IV. Derogations from Article 4 (Article 10) Generally, Article 10(1) stipulates that the definition of family members in Article 4 is applicable. Thus Member States may require a minimum age of spouses of up to 21 years even if the marriage existed before entry of the sponsor (Article 4(5)) and impose, as an option, the condition that an application concerning family reunification of minor children has to be submitted before the age of 15, provided the relevant national legislation already existed on 3 October 2005 (Article 4 (6)). The prohibition of Article 4(4) of family reunification of a further spouse in the event of a polygamous marriage is applicable as well. 7 Member States may not require children of refugees to fulfil a condition of integration as mentioned in the third subparagraph of Article 4(1) (see Article 10(1)). Thus Member States must allow family reunification of children of refugees below the legal age of majority irrespective of a condition of integration.691 8 On an optional basis Member States may authorise family reunification of any other family member not covered by Article 4 provided he/she is dependent on the refugee (Article 10(2)). Such other family members may for example be uncles and aunts, parents, grandparents, grandchildren. There is no restriction to the degree of relatedness and even not biologically related individuals might be considered.692 The interpretation of the term ‘dependent’ is questionable. While in the English version a corresponding term can be found in Article 4(1)(c) and (d) and Article 4(2)(a), the Italian version uses different terms in Article 4(1)(c) and Article 10(2).693 The Spanish, French and German versions use the same term.694 The element of dependency shall ensure that a family relationship exists. The ECtHR has interpreted the element of dependency differently, depending on which family member is concerned.695 The dependency may therefore take the form of financial dependency or psychological or physical dependency, depending on the family member concerned (see above Article 4 MN 14). 9 If the sponsoring refugee is an unaccompanied minor as defined by Article 2(f), Member States are obliged to ‘authorise the entry and residence for the purposes of family reunification of his/her first-degree relatives in the direct ascending line without applying the conditions laid down in Article 4(2)(a)’ (Article 10(3)(a)), which means that Member States must grant them family reunification regardless of whether they are ‘dependent on the sponsor and […] do not enjoy proper family support in the country of origin’ (Article 4(2)(a)). This is a mandatory provision.696 The rule also applies in case of adoption, as the provisions in Article 4 clearly states that natural and adopted children must be treated alike. The provision grants a right to family reunification to all first-degree relatives in the direct ascending line. Therefore it is doubtful whether a national provision requiring that there is no parent living in Germany who is in 6

691

Commission Proposal, COM(2002) 225 final, p. 9. Member States are encouraged ‘to use their margin of appreciation in the most humanitarian way, Commission Communication, COM(2014) 210 final, p. 22. 693 Where minor children are concerned, the Italian version uses the terms ‘responsabile del loro mantenimento’ (Article 4(1)(c) and (d)). In case of Article 10(2) and Article 4(2)(a) the Directive requires that the family member is ‘in carico’. 694 In the Spanish version, like in the English one, there is no distinction. In the entire Directive the word ‘cargo’ is used. The French version uses the term ‘charge’. The German version uses the term ‘fu¨r den Unterhalt aufkommen’. 695 Russo in: Pettiti/Decaux/Imbert (eds), La Convention Europe ´enne des Droits de l’Homme (Economia, 1999), Article 8 § 1 p. 316. 696 Commission Report, COM(2008) 610 final, p. 6. 692

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possession of the right of care and custody meets the requirements of Article 4(2)(a).697 As an option, Member States may authorise family reunification to the ‘legal 10 guardian or any other member of the family, where the refugee has no relatives in the direct ascending line or such relatives cannot be traced’ (Article 10(3)(b)). Thus, the Directive does not entail a right to family reunification in case the refugee has no relatives in the direct ascending line, but only an option for Member States to allow entry and residence in that case.

V. Derogations from Article 5 (Article 11) Article 11 provides for derogations from the procedural requirements stipulated by 11 Article 5. In general, Article 5 is applicable with regard to the submission and examination of the application (Article 11(1)). However, Article 11(2) provides that ‘(W)[w]here a refugee cannot provide official documentary evidence of the family relationship, the Member States shall take into account other evidence, to be assessed in accordance with national law, of the existence of such relationship’. Member States have a certain margin of appreciation regarding the definition of ‘other evidence’, yet the respective rules should be unambiguous.698 In many States specific rules are missing.699 A number of Member States use interviews700 or provide that investigations may be carried out abroad.701 In that case, the family member concerned will be charged with the costs of the investigations, which conflicts with the purpose of Chapter V.702 Most Member States provide for DNA tests.703 The concept of family is not restricted to persons that have a ‘blood relationship’.704 DNA test involve the risk of reducing the socio-biological complexity of families to solely biological entities and potentially excludes family members that are only related socially and not genetically.705 DNA tests should only be used as a ‘last resort’ where serious doubts remain after other means of evidence have been examined.706 Furthermore, the DNA testing should comply with the UNCHR principles on DNA testing.707 The Directive does not prohibit charging the applicant for a DNA test or other investigations. However, the costs cannot be disproportionate or excessive and thereby deprive the effectiveness of the Directive by creating obstacles to obtaining the rights conferred by the Directive.708 697 Section 36(1) of the German Aufenthaltsgesetz (Residence Act) states a residence permit shall be issued to the parents of a minor recognised refugee notwithstanding the conditions laid down in Section 5(1)(resources including health insurance) and Section 29(1) (accommodation) if there is no parent living in Germany who is in possession of the right of care and custody, Labayle/Pascouau, Odysseus Synthesis Report on Directive 2003/86/EC, p. 116. 698 Commission Communication, COM(2014) 210 final, p. 22. 699 Groenendijk/Fernhout et al., The Family Reunification Directive, p. 43. 700 Belgium, Finland, France, Federal Republic of Germany, Netherlands, and Slovenia, Labayle/ Pascouau, Odysseus Synthesis Report on Directive 2003/86/EC, p. 119. 701 Belgium, Finland, Ireland, Italy, Labayle/Pascouau, Odysseus Synthesis Report on Directive 2003/86/ EC, p. 119. 702 Labayle/Pascouau, Odysseus Synthesis Report on Directive 2003/86/EC, p. 119. 703 Austria, Belgium, Germany, Finland, France, Italy, Spain, Lithuania, the Netherlands, Sweden, Denmark, United Kingdom, Commission Report, COM(2008) 610 final, p. 9–10; Labayle/Pascouau, Odysseus Synthesis Report on Directive 2003/86/EC, p. 119. 704 ECJ, O. & S., joined Cases C-356/11 and C-357/11, EU:C:2012:776, para 55. 705 Heinemann/Naue/Tapaninen, ‘Verifying the Family? A Comparison of DNA Analysis for Family Reunification in Three European Countries (Austria, Finland and Germany)’, EJML 15 (2013), 183, 185. 706 Commission Communication, COM(2014) 210 final, p. 22–23. 707 UNHCR, UNHCR Note on DNA Testing to Establish Family Relationships in the Refugee Context, available at: http://www.refworld.org/docid/48620c2d2.html [last accessed 13 January 2015] 708 Commission Communication, COM(2014) 210 final, p. 23.

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Rejection of an application may not be based solely on the fact that documentary evidence is lacking (Article 11(2)). In this regard Article 11(2) leaves no margin of appreciation. This provision takes the difficulties into account that refugees may have in providing or obtaining documents from their country of origin.709

VI. Derogations from Article 7 (Article 12(1)) Article 12(1) contains derogation options concerning Article 7. Member States may not require the family members mentioned in Article 4(1), i. e. the nuclear family,710 to provide ‘the evidence that the refugee fulfils the requirements set out in Article 7’, i. e. accommodation, health insurance and stable and regular resources (Article 12(1)). The derogation is only applicable to spouses and minor children.711 Therefore, Member States may confine this exception to the nuclear family.712 14 Article 12(1) contains two exceptions to the above-mentioned rule.713 Both exceptions were inserted during the final negotiations in the Council on request of the German and Dutch delegations714 and the Council documents do not explain them. First, ‘where family reunification is possible in a third country with which the sponsor and/or family member has special links’ Member States may require the nuclear family to provide the evidence of compliance with Article 7. This option does not only require that the third country is a safe country for the sponsor and his/her family members. The requirement of ‘special links’ also implies that the family member must have familiar, social or cultural ties (see Article 17) to the third country. The third country must qualify as a realistic alternative for family reunification.715 The burden of proof regarding the possibility of family reunification in a third country, meaning there is no risk of persecution or of refoulement and the refugee has the possibility to receive protection in accordance with the Geneva Convention, lies on the Member State, not the applicant.716 15 Second, Member States may require the refugee to meet the conditions referred to in Article 7(1) if the application for family reunification is not submitted within a period of three months after refugee status was granted. When Member States apply this limitation, they should consider objective practical obstacles the applicant faces when assessing an application and guarantee the effectiveness of the right to family reunification by allowing for the possibility of the sponsor submitting the application in the territory of the Member State and allow to make a partial application, that can be completed as soon as the necessary documents are available.717 16 However, the second subparagraph of Article 7(2) contains a more specific rule with regard to the option to require the family member to ‘comply with integration measures’ as provided for by the first subparagraph of Article 7(2): Member States may only require this compliance ‘once the persons concerned have been granted family reunification’ meaning the family member has entered the Member State. In that case the sponsoring refugee as well as the family member may be required to fulfil the integration measure. In contrast, the economic requirements mentioned in the first 13

709

Boeles/den Heijer et al., European Migration Law, p. 203. Oosterom-Staples, in: Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice?, p. 451, 475. 711 See Commission Proposal, COM(2002) 225 final, Explanatory Memorandum, p. 9. 712 Boeles/den Heijer et al., European Migration Law, p. 203. 713 Oosterom-Staples, in: Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice?, p. 451, 475. 714 Gue `vremont, Vers un traitement equitable, p. 207. 715 Oosterom-Staples, in: Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice?, p. 451, 475. 716 Commission Communication, COM(2014) 210 final, p. 23. 717 Commission Communication, COM(2014) 210 final, p. 23–24. 710

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subparagraph of Article 7(1) may not be required even after family reunification has been granted.

VII. Derogations from Article 8 (Article 12(2)) Article 12(2) provides that for family reunification of refugees the waiting periods 17 mentioned in Article 8 may not be imposed. Thus, family reunification to refugees is possible as soon as they have been recognised the status of refugee718 irrespective of the length of lawful stay of a recognised refugee and irrespective of the period of time between the application for family reunification and the issue of a residence permit to a family member.

CHAPTER VI Entry and residence of family members Article 13 1. As soon as the application for family reunification has been accepted, the Member State concerned shall authorise the entry of the family member or members. In that regard, the Member State concerned shall grant such persons every facility for obtaining the requisite visas. 2. The Member State concerned shall grant the family members a first residence permit of at least one year’s duration. This residence permit shall be renewable. 3. The duration of the residence permits granted to the family member(s) shall in principle not go beyond the date of expiry of the residence permit held by the sponsor. Content I. Facilitation of entry (Article 13(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Duration of the residence permit (Article 13(2) and (3)). . . . . . . . . . . . . . . . . . .

1 4

I. Facilitation of entry (Article 13(1)) Article 13(1) stipulates an obligation to grant entry facilitaty for the required. 1 Member States have to ensure a ‘speedy visa procedure, reduce additional administrative burdens to a minimum and avoid double-checks on the fulfilment of the requirements for family reunification’.719 In contrast to the current provision the first proposal contained a clause stating that 2 ‘such visas shall be issued without charge.’720 Since this clause was deleted during the negotiations, Member States are allowed to request fees for the issuance of visa, as long as they are not excessive or disproportionate in regard to the administrative work (see in detail above Article 5 MN 6).721 718

Oosterom-Staples, in: Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice?, p. 451, 475. Commission Communication, COM(2014) 210 final, p. 19. 720 Commission Proposal, COM(1999) 638 final, third subparagraph of Article 11(1). 721 The fees in respect of initial entry vary from 0–100 EUR in twelve Member States, 101–200 EUR in seven Member States, 201–500 EUR in five Member States and excessive 1227 EUR in the UK (which is not bound by the Directive), Wray/Agoston/Hutton, EJML 2014, p. 224–226. 719

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As access to travel documents and visas is sometimes difficult or dangerous, Member States should take into account the specificities of the case and the circumstances in the country of origin. Therefore, it might in some cases be appropriate to accept emergency travel documents or issue a visa upon arrival in the Member State.722 The Commission, in its 2008 Evaluation Report identified a number of problems of implementation of the facilitation clause ‘on a legal and practical basis’; some countries require a double-check on whether the family reunification requirements are met, first when applying for a visa to enter and then again when applying for a residence permit; frequently, Member States prescribe that a visa application can only be filed in the country of origin or of permanent residence.723 Such procedures are in accordance with Article 13 as long as pre-entry visa procedures in an applicant’s country of origin or of permanent residence are necessary to control compliance with substantial family reunion requirements. Article 13(1), however, excludes double checks on fulfilment of the same requirements.724

II. Duration of the residence permit (Article 13(2) and (3)) Member States must grant the family member a first residence permit with a minimum duration of one year (first subparagraph of Article 13(2)). In contrast, the first proposal required the residence title to be ‘of the same duration’725. The residence permit must be renewable (second subparagraph of Article 13(2)). This means that prolongation of the residence permit may not be excluded. However, where the conditions of the Directive are no longer met, Member States may reject prolongation or withdraw an existing residence permit according to Article 16(1)(a). 5 The family member’s residence title is accessory to the sponsor’s residence title.726 This principle is reflected in Article 13(3) which provides that duration of the residence permit granted to the family member ‘shall in principle not go beyond the date of expiry of the residence permit held by the sponsor’. Member States may issue residence permits for a one-year duration irrespective of the longer validity of a sponsor’s residence permit. The term ‘in principle’ allows exceptions from the rule that the residence permit of the family member must not go beyond the existing date of the sponsor’s residence permit. Such exceptions can for instance be suitable if prolongation of a sponsor’s residence permit is envisaged or if for other reasons the accessory nature of the family member’s residence permit is ensured. 6 As the Commission has stated ‘When implementing these provisions a problem may arise if the validity of the sponsor’s residence permit is less than one year when the family member’s residence permit is issued. Article 13(3) then seems to prevail over 13(2). Member States that always align the duration of the family member’s residence permit with that of the sponsor impede the Directive if applying this rule in bad faith so as to restrict the family member’s residence (i. e.: if the sponsor’s residence permit is already in the process of renewal.)’727 4

722

Commission Communication, COM(2014) 210 final, p. 19. Commission Report, COM(2008) 610 final, p. 12. 724 Boeles/den Heijer et al, European Migration Law, p. 199; Peers, EU Justice and Home Affairs Law, p. 468; Peers/Guild et al, EU Immigration Law, p. 263. 725 Commission Proposal, COM(1999) 638 final, Article 11(2). 726 Tewocht, Der Schutz von Ehe und Familie im Ausla ¨ nder- und Asylrecht (Universita¨t Halle-Wittenberg 2008), p. 25. 727 Commission Report, COM(2008) 610 final, p. 12. 723

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Article 14 1. The sponsor’s family members shall be entitled, in the same way as the sponsor, to: (a) access to education; (b) access to employment and self-employed activity; (c) access to vocational guidance, initial and further training and retraining. 2. Member States may decide according to national law the conditions under which family members shall exercise an employed or self-employed activity. These conditions shall set a time limit which shall in no case exceed 12 months, during which Member States may examine the situation of their labour market before authorising family members to exercise an employed or self-employed activity. 3. Member States may restrict access to employment or self-employed activity by first-degree relatives in the direct ascending line or adult unmarried children to whom Article 4(2) applies. Content I. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 III. Rights of family members (Article 14(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1. Equal treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2. Access to education (Article 14(1)(a)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3. Access to employment and self-employed activity (Article 14(1)(b)) . . 11 4. Access to vocational guidance and training (Article 14(1)(c)) . . . . . . . . . . 15 IV. Optional restriction of labour market access (Article 14(2) and (3)) . . . . . 16

I. General remarks Article 14 guarantees that once family reunification is granted family members have 1 rights to access to education, the labour market and vocational training. Today, all important directives on admission of third-country nationals, this Directive, the Long Term Residents’ Directive 2003/109/EC, the Asylum Qualification Directive 2011/95/ EU and the Free Movement Directive 2004/38/EC also grant access to the labour market.728 Recital 15 explains that it is the purpose of the Directive to promote the integration of family members. For that purpose family members should be granted ‘access to education, employment and vocational training on the same terms as the person with whom they are reunited, under the relevant conditions.’ More favourable provisions in international agreements apply according to Arti- 2 cle 3(4)(a), such as the EEC-Turkey Association Agreement729 and related Council decisions. Furthermore, Article 15 of the Blue Card Directive 2009/50/EC grants family members of Blue Card Holders privileged access to the labour market irrespective of any time limit.730

728

Boeles/den Heijer et al., European Migration Law, p. 201. OJ 1977 C 110/60. 730 See Article 15 of Blue Card Directive 2009/51/EC, Kuczynski/Solka, ‘Die Hochqualifiziertenrichtlinie’, Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik (2009), p. 219, 227. 729

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II. Drafting history In the Council the original Commission proposal has been changed in a more restrictive way. Whereas the original and the second Commission proposal granted the rights ‘in the same way as citizens of the Union’,731 the adopted provision stipulates that family members shall be entitled to the rights mentioned in Article 14 ‘in the same way as the sponsor’.732 The purpose of the original proposal was to approximate the rights of third-country nationals to those of Union citizens in order to grant them comparable rights as mentioned in the Tampere conclusions.733 Several Member States opposed the provision arguing that this wording would lead to family members being treated more favourably than the sponsor.734 Thus, equal treatment with Union citizens was replaced by equal treatment with the sponsor in order to prevent different treatment within one and the same family.735 The negative impact of this restriction is attenuated by the fact that family members can obtain a privileged status of a long term resident according to the Long Term Residents’ Directive 2003/109/EC.736 4 Article 14(2) allows Member States to apply a labour market test during the first 12 months after admitting a family member. The clause was suggested during the final negotiations by Germany.737 Article 14(3) on the restriction of access by first degree relatives and adult unmarried children has been amended considerably during the negotiations: The first proposal explicitly excluded application of the rights mentioned under (b) and(c) for relatives in the ascending line and adult children to whom ex Article 5(1)(d) and(e) of the first proposal (now Article 4(2)) applied.738 The Commission argued at the time that they should be ‘not authorised to exercise a gainful activity or to receive vocational training, as they have been eligible for reunification solely on the basis of their dependence on the applicant’.739 Instead of this restriction, under Article 14(3) Member States may optionally restrict those family members’ access to employment and self-employment (Article 14(1)(b)). By including this option in the second proposal740 the Commission partially responded to the European Parliament’s suggestion to completely remove the restriction.741 An original restriction on the access to vocational training was at first eliminated by the second proposal742 and finally adopted in the text of the provision. 5 In the German version of the Directive during the final negotiations Article 14(1)(a) was changed from ‘Zugang zur Ausbildung’ (vocational training) to ‘allgemeiner Bildung’ (general education). The term ‘allgemeiner’ (general) is not reflected in the English, nor in 3

731 Commission Proposal, COM(1999) 638 final, Article 12(1) and Commission Proposal, COM(2000) 624 final, Article 12(1), emphasis added. 732 Commission Proposal, COM(2002) 225 final, Article 14(1), emphasis added. See Article 27(1) of former Qualification Directive 2004/83/EC which grants access to education to minors granted refugee or subsidiary protection status ‘under the same conditions as nationals.’ 733 Commission Proposal, COM(1999) 638 final, p. 19. 734 Council doc. 8633/00 of 19 May 2000, p. 9 et seq (French version only); Council doc. 11524/00 of 4 January 2001, p. 20 note 1. 735 Commission Proposal, COM(2002) 225 final, p. 10. 736 Peers, EU Justice and Home Affairs Law, p. 217. 737 Hauschild, Zeitschrift fu ¨ r Ausla¨nderrecht und Ausla¨nderpolitik 2003, p. 266, 272. 738 Commission Proposal, COM(1999) 638 final, Article 12(2). 739 Commission Proposal, COM(1999) 638 final, p. 19. 740 Commission Proposal, COM(2000) 624 final, Article 12(2). 741 Commission Proposal, COM(2000) 624 final, p. 4 with reference to amendment 16 of the European Parliament. 742 Commission Proposal, COM(2000) 624 final, Article 12.

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the French, Spanish or Italian version. It seems that this change was inserted in order to distinguish education in (a) from vocational training in (c); the change therefore does not allow a restrictive interpretation of the term education in (a).

III. Rights of family members (Article 14(1)) 1. Equal treatment Article 14(1) contains a limited equal treatment clause. Family members are entitled 6 to the rights mentioned in Article 14(1) in the same way as the sponsor.743 Thus where the sponsor is not entitled, for example, to employment, neither is the family member.744 Where the sponsor is required to possess a work permit, so is the family member. Unequal treatment of the sponsor and the family member, for example with regard to the requirement of a work permit, may only be imposed by virtue of Article 14(2) and (3). Equal treatment does not only concern the extent of the rights but also free access to education and the requirement to pay a fee.745 By virtue of Article 3(5) Member States may decide to treat family members more 7 favourably than the sponsor.

2. Access to education (Article 14(1)(a)) According to Article 13(1)(a) the Member States must grant family members a right 8 of access to education. The content of this right is not specified. Going beyond (a), Article 9 of Decision 1/80 of the EEC-Turkey Association Council contains an explicit non-discrimination clause for children with regard to nationals of the Member State concerned.746 Access to education of children of Turkish workers may not be limited even if the sponsor’s access is limited.747 Implementation of (a) may take various forms, such as through a general principle of law on equality and non-discrimination.748 Article 13(1)(a) includes not just access to general education – primary or secondary – 9 but also to vocational and university education.749 Unlike Article 9 of Decision 1/80 of the EEC-Turkey Association Council there is no explicit clause that family members shall ‘be eligible to benefit from the advantages provided for under the national legislation’. The ECJ had interpreted this clause with regard to children of Turkish citizens entitled to a status under the Association Agreement as granting a right to equal treatment with regard to educational grants.750 Since a similar clause has not been included in Article 14 of the Directive, one may conclude that Member States are not obliged to grant family members access to social benefits. On the other hand, a comparison with Article 14(2) of the Blue Card Directive 2009/50/EC seems to suggest an interpretation whereby access to education includes financial assistance granted by 743 See Dienelt, ‘Die Auswirkungen der Familienzusammenfu ¨ hrungsrichtlinie auf die Mo¨glichkeit der Aufnahme einer Erwerbsta¨tigkeit’, Informationsbrief Ausla¨nderrecht (2006), p. 1–3. 744 Groenendijk/Fernhout et al., The Family Reunification Directive, p. 34. 745 See Labayle/Pascouau, Odysseus Synthesis Report on Directive 2003/86/EC, p. 140 on prohibitive fees in Ireland for non EU-nationals for third level education. 746 ‘Turkish children residing legally in a Member State of the Community with their parents who are or have been legally employed in that Member State, shall be admitted to courses of general education, apprenticeship and vocational training under the same educational entry qualifications as the children of nationals of that Member State. They may in that Member State be eligible to benefit from the advantages provided for under the national legislation in this area.’ 747 ECJ, Gu ¨ rol, C-374/03, EU:C:2005:435. 748 Commission Report, COM(2008) 610 final, p. 14. 749 Commission Proposal, COM(1999) 638 final, p. 19. 750 ECJ, Gu ¨ rol, C-374/03, EU:C:2005:435.

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the state for the purpose of education, such as study and maintenance grants, loans or other grants. In Article 14 of the Blue Card Directive equal treatment with respect to education and vocational training has been granted; yet, the legislator has explicitly considered it necessary to exclude study and maintenance grants and loans or other grants and loans regarding secondary and higher education and vocational training.751 However, the comparison does not allow conclusions since the wording of the two provisions differs substantially. Article 14 speaks of ‘access to education’ while Article 14 of the Blue Card Directive 2009/50/EC grants generally equal treatment as regards education and vocational training. Thus, one may argue that a specifying clause was considered necessary with regard to the more general equal treatment guarantee while a similar clarifying provision was not considered necessary when only access to education has been provided for as in the case of the Family Reunification Directive. In addition, it seems highly doubtful whether Member States would have been willing to provide fewer rights to family members of highly qualified third-country nationals holding the privileged Blue Card status while children of third-country nationals not benefitting from the privileged Blue Card status would enjoy a higher degree of social rights. Therefore systematic reasons do not support the assumption that access to education includes equal treatment with regard to financial assistance grants for the purpose of education. 10 Unlike Article 14(1)(d) of the Blue Card Directive 2009/50/EC and Article 28 of Directive the Asylum Qualification Directive 2011/95/EU the Family Reunification Directive does not contain a provision regarding recognition of diplomas and other professional qualifications.752 However, access to employment and self-employed activities must not be subjected to requirements which make it impossible or excessively difficult for family members to exercise a profession requiring certain qualifications. Therefore the recognition of qualification criteria as laid down in the Directive 2005/36/ EC (OJ 2005 L 255/22) on the recognition of professional qualifications for Union citizens, although such criteria are not applicable to third-country nationals, may serve as guidelines, provided that there are comparative factual and legal circumstances.

3. Access to employment and self-employed activity (Article 14(1)(b)) Article 14(1)(b) grants access to employment and self-employed activity in the same way as the sponsor. The European Union does not have an explicit competence to regulate access of third-country nationals to the labour market. During the negotiations of the Directive it was argued that this subject should remain within the competence of the Member States.753 Yet, Article 14 was adopted which implies at least a limited competence to regulate admission of family members to the national labour markets.754 12 Except for the case mentioned in the second subparagraph of Article 14(2), Member States are not allowed to require a work permit for the family member if the sponsor is not required to have one.755 The equal-treatment clause mentioned in Article 14(1) cannot be used to limit the access to employment with regard to the employment of the employer, the location or the time. 11

751

Article 14(2) of the Blue Card Directive 2009/50/EC. See Article 14(1)(d) of the Blue Card Directive 2009/50/EC; Article 27(3) of former Qualification Directive 2004/83/EC (Qualification and Status). Directive 2005/36/EC (OJ 2005 L 255/22) on the recognition of professional qualifications applies to Union citizens only. 753 Groenendijk, EJML 2006, p. 215, 222; Council doc. 10857/02 of 9 August 2002, p. 18, note 3. 754 Walter, Familienzusammenfu ¨ hrung in Europa, p. 192–193; see also Hailbronner, Immigration and Asylum Law and Policy of the European Union (Springer, 2000), p. 106. 755 Commission Report, COM(2008) 610 final, p. 13. 752

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The right mentioned in Article 14(1)(b) is granted to the spouse, minor children and 13 to first-degree relatives in the direct ascending line or adult unmarried children to whom Article 4(2) (see Article 14(3)). If family reunification is granted to other family members by virtue of Article 4(3) or Article 10(2), Member States may optionally grant those persons access to the labour market by virtue of Article 3(5) (see above, Article 3 MN 24). Member States are required to grant family members an effective right to access for 14 employment. Examples for incorrect transposition are complicated procedures and the obligation to pay excessive monthly fees for a work permit.

4. Access to vocational guidance and training (Article 14(1)(c)) Lit. c) grants access to all forms of vocational guidance and training such as initial 15 and further training and retraining. As with regard to access to employment the EU’s competence concerning vocational training is limited to supporting the Member States ‘while fully respecting the responsibility of the Member States for the content and organisation of vocational training’ (Article 166 TFEU). However, access to vocational training is closely connected to questions of immigration policy and correspondingly the EU is competent to regulate access to vocational training.

IV. Optional restriction of labour market access (Article 14(2) and (3)) Article 14(2) was inserted in order to comply with Germany law on request of the 16 German delegation.756 The wording and structure is not very clear and may give rise to different interpretations. Article 14(2) allows Member States to decide the conditions under which family members shall exercise an employed or self-employed activity. Conditions in the sense of Article 14(2) do not refer to general employment requirements which have to be fulfilled in any case to take up employment such as safety standards, minimum wages or certification requirements. It would be unlikely that such conditions are specified for the admission of family member of migrant workers. Therefore, Article 14(2) covers particular conditions valid for the category of persons referred to in Article 14(2). Whereas the Council Presidency had originally suggested the term ‘modalities’ in 17 Article 14(2), the German and Austrian request to replace the term with ‘conditions’ was accepted in the Council.757 The drafting history and purpose of the provision indicate that Member States under the reservation clause wanted to maintain existing powers to control access with respect to labour market concerns, specified integration conditions as well as waiting periods to prevent family reunion becoming an essential pull-factor for unskilled labour immigration. According to Article 14(2) ‘these conditions shall set a time limit which shall in no case exceed 12 months, during which Member States may examine the situation of their labour market before authorising family members’.758 The second sentence of Article 14(2) restricts the powers of the Member States contained in the first sentence of Article 14(2) by setting up a maximum time limit of 12 months for imposing conditions.759 The possibility to restrict access to 756 Hauschild, Zeitschrift fu ¨ r Ausla¨nderrecht und Ausla¨nderpolitik 2003, p. 266, 272, see Section 29(5) German Aufenthaltsgesetz (Residence Act). 757 Council doc. 6585/03 of 25 February 2003, p. 18 note 1. 758 Emphasis added. 759 Boeles/den Heijer et al., European Migration Law, p. 201; Gue `vremont, Vers un traitement ´equitable, p. 217.

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the labour market has been criticized with regard to the object of integration which is furthered by providing access to the labour market rather than restricting access.760 Recital 15 does in fact explicitly connect promotion of integration with access to the labour market. 18 Since Article 14(2) makes a distinction between conditions and labour market situation, one may argue that conditions must not necessarily relate to the situation of the labour market. Therefore, to impose a waiting period would not necessarily have to be justified by the labour market. However, the time limit stated in the second sentence of Article 14(2) clearly applies to the conditions in general (‘these conditions shall set a time limit’), thus making clear that the combined conditions are limited in their duration by the 12–months period during which Member State may examine the situation of the labour market. The general reference to the labour market situation as well as the systematic context of Article 14(2) and (3) indicate an interpretation that conditions must be related in a broad sense to the situation of the national labour market.761 This, however, does not necessarily imply that a restriction is only admissible if a concrete need to protect the national labour market can be shown by the Member State. Therefore, restrictions of access to the labour market may be based on general considerations that are (only) related to the labour market, such as creating incentives for family members to learn additional skills (e. g. language or social skills) to better adjust to the labour market and integrate into the society of the Member State. 19 In assessing whether the labour market situation requires restriction of the family member’s access to the labour market Member States enjoy a margin of appreciation. If a labour market test so indicates Article 14(2) may serve to restrict labour market access and even lead to a complete exclusion of family members from the labour market in the first year.762 This follows from the wording of Article 14(2) which states that the labour market situation may be examined ‘before authorising family members to exercise an employed or self-employed activity’.763 A general ban for one year is only admissible if the situation on the labour market is characterised by a general high unemployment rate.764 The principle of an individual examination in cases of rejection, withdrawal or refusal to renew (Article 17), reflected by the ECJ in the requirement to take into account the actual situation of each applicant,765 applies only to the application for a residence permit, renewal or prolongation and cannot directly be transferred to the access to the labour market, but may require at least the possibility of an exception of a general prohibition. 20 According to Article 14(3) Member States may optionally restrict labour market access ‘by first-degree relatives in the direct ascending line or adult unmarried children to whom Article 4(2) applies. Thus, Article 14(3) is an exception from the equaltreatment clause contained in Article 14(1).766 Since Article 14(3) explicitly mentions a group of family members to whom access of the labour market may be restricted, as an argumentum e contrario other family members admitted under Article 4(3) and Arti760 Gue `vremont, Vers un traitement e´quitable, p. 216. The negative impact of not granting immediate access to the labour market with regard to the aim of integration was also discussed in the Council, see Council doc. 7612/01 of 11 April 2001, p. 14 note 1. 761 Groenendijk, EJML 2006, p. 215, 222; Thiele, ‘Einwanderung im Europa ¨ischen Gemeinschaftsrecht – Familienzusammenfu¨hrung und Daueraufenthalt von Drittstaatsangeho¨rigen’, Europarecht (2007), p. 419, 430; Brinkmann, in: Bo¨cker/Havinga et al. (eds), Migration Law and Sociology of Law, p. 35, 39; Gue`vremont, Vers un traitement ´equitable, p. 217; Commission Report, COM(2008) 610 final, p. 14. 762 Different view Groenendijk, EJML 2006, p. 215, 222. 763 Emphasis added. 764 For a critical assessement see Peers/Guild et al, EU Immigration Law, p. 263 note 104. 765 ECJ, Chakroun, C-578/08, EU:C:2010:117, para 48. 766 Gue `vremont, Vers un traitement ´equitable, p. 216.

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cle 10(3) may not be restricted. Family members not falling into the scope of application of the Directive, to whom family reunion may nevertheless be granted may have a right of access to the labour market. Member States are free to grant such persons access to the labour market on the basis of national law. To promote the integration of family members (recital 15) and avoid deskilling and poverty traps, restrictions on labour market access should be kept to a minimum.767

Article 15 1. Not later than after five years of residence, and provided that the family member has not been granted a residence permit for reasons other than family reunification, the spouse or unmarried partner and a child who has reached majority shall be entitled, upon application, if required, to an autonomous residence permit, independent of that of the sponsor. Member States may limit the granting of the residence permit referred to in the first subparagraph to the spouse or unmarried partner in cases of breakdown of the family relationship. 2. The Member States may issue an autonomous residence permit to adult children and to relatives in the direct ascending line to whom Article 4(2) applies. 3. In the event of widowhood, divorce, separation, or death of first-degree relatives in the direct ascending or descending line, an autonomous residence permit may be issued, upon application, if required, to persons who have entered by virtue of family reunification. Member States shall lay down provisions ensuring the granting of an autonomous residence permit in the event of particularly difficult circumstances. 4. The conditions relating to the granting and duration of the autonomous residence permit are established by national law. Content I. General remarks and purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Autonomous residence permit (Article 15(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Optional limitation to cases of breakdown of the family relationship . IV. Optional issuance of autonomous residence permits (Article 15(2) and (3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Autonomous residence permit in particularly difficult circumstances (Article 15(3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI. Conditions for granting and duration (Article 15(4)) . . . . . . . . . . . . . . . . . . . . . . .

1 4 7 7 12 16 19 20

I. General remarks and purpose Residence permits granted to family members for the purpose of family reunion are 1 based upon an existing family relationship. If a family relationship has ceased to exist a residence permit may be withdrawn or terminated unless there is an entitlement to another residence title. The dependency upon the residence permit of a sponsor, however, becomes doubtful when a family member has spent some years in the host country or in case of particular circumstances such as death of a spouse or maltreatment. Article 15 distinguishes between acquisition of an autonomous residence permit, independent to that of the sponsor by: 767

Commission Communication, COM(2014) 210 final, p. 19–20.

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five years residence (first subparagraph of Article 15(1)), breakdown of family relationship (second subparagraph of Article 15(1)), reaching adulthood or dependency of first degree relatives (Article 15(2)), widowhood, divorce, separation or death of first degree relative (first sentence of Article 15(3)), – particularly difficult circumstances (second sentence of Article 15(3)). 2 The common purpose is to improve integration chances. Autonomy of status is considered as a major element of integration promotion.768 The provision contains for the most part options for Member States which may use them or not, according to their national laws. Reference to national law determines the conditions for the granting and duration of the autonomous residence permit, unless Article 15 specifies an obligation of Member States. This structure reflects the divergent concepts of Member States to the granting of autonomous residence permits to family members. Although recognised as a principle in most Member States, opinions are different as to the suitability of a right to an autonomous residence permit in terms of required residence duration and/or particular circumstances justifying a continuation of a residence title.769 3 In the event of breakdown, a right to an autonomous residence permit must be given to the spouse or unmarried partner (Article 15(1)), in the event of difficult circumstances that right must be given to a broader category of persons (Article 15(3)). Despite these two mandatory provisions Article 15 contains a number of optional reasons for granting an autonomous residence permit.

II. Drafting history Article 15 was changed several times during the negotiation process. The original proposal provided that an autonomous residence permit should be given after four years.770 This period was extended to five years by the third proposal in order to receive consistency with the Long Term Residents’ Directive 2003/109/EC771 which grants longterm resident status after five years of legal residence. 5 In the second subparagraph of Article 15(1) the original requirement of an existing family relationship was replaced by the requirement that the ‘the family member has not been granted a residence permit for reasons other than family reunification’.772 In addition, a phrase was inserted that the autonomous residence permit is issued ‘upon application, if required’. 6 The first subparagraph of Article 15(3), which provides for optional granting of an autonomous residence permit, originally contained a clause that persons applying for an autonomous residence permit ‘have been resident for at least one year’.773 This requirement was waived by the third proposal.774 The third proposal also included a phrase stating that ‘an independent residence permit may be issued’775 instead of the former version that ‘persons … may apply for an autonomous residence permit’.776 The word ‘independent’ has been replaced by ‘autonomous’ again during the final negotiations. 4

768

See recital 15. See for the variety of national measures transposing the Directive Groenendijk/Fernhout et al., The Family Reunification Directive, p. 35 et seq. 770 Commission Proposal, COM(1999) 638 final, Article 13(1). 771 Commission Proposal, COM(2001) 127 final. 772 The new phrase was first contained in Council doc. 5508/03 of 23 January 2003, p. 19. 773 Commission Proposal, COM(1999) 638 final, Article 13(3). 774 Commission Proposal, COM(2002) 225 final, Article 15(3). 775 Emphasis added. 776 Commission Proposal, COM(2002) 225 final, Article 15(3), emphasis added. 769

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The phrase ‘upon application, if required’ which is contained in Article 15(1) has also been inserted in Article 15(3) during the final negotiations. Article 15(3) was changed by the third proposal, the original proposal stated that ‘Where necessary by reason of particularly difficult situations, Member States shall accept such applications’ whereas now Member States ‘shall lay down provisions ensuring the granting of an independent (now autonomous) residence permit’ in that event.777 Furthermore, Article 15(4) was inserted during the final negotiations on request of Austria.778

III. Autonomous residence permit (Article 15(1)) 1. Requirements Article 15(1) specifies that an autonomous residence permit shall be granted to family members under two conditions: First, five years of residence. The five-year-period is the maximum period (‘not later than’) Member States are allowed to grant an autonomous residence permit earlier.779 The term ‘residence’ is not specified but there is no indication that the term should not be interpreted in analogy to the term ‘stayed lawfully’ mentioned in Article 8(1) (see above Article 8 MN 9 et seq).780 Thus, the correct transposition of the provision is questionable if a Member State starts counting the five-year-period with the first residence permit, which leaves a visa unaccounted for.781 Member States are allowed to set up more favourable conditions according to Article 15(4) and to take periods of illegal stay into account. The second condition is that ‘the family member has not been granted a residence permit for reasons other than family reunification’. The Council documents do not reveal why this phrase was inserted during the final negotiations. It replaced the former provision that ‘the family relationship still exists’.782 The provision requires that the family member requesting an autonomous residence permit is still in need of an independent right of residence and does not otherwise have a secure residence status. Article 15(1) allows Member States to grant the autonomous residence permit only ‘upon application if required’. Member States are not obliged to grant the residence permit ex officio. The persons entitled to the residence permit are the spouse, the unmarried partner and minor children who have reached majority (Article 15(1)). Member States may apply Article 15 to registered partners as well if they decide to apply the provisions on spouses by virtue of Article 4(3). The term ‘autonomous residence permit’ means a residence permit in the sense of Article 2(e). The term ‘autonomous’ is further specified by Article 15(1) as ‘independent of that of the sponsor’.783 The residence permit mentioned in Article 15 does not require a permanent residence permit, although most Member States do not seem to distinguish between autonomous residence permits and permanent residence permits.784 The 777

Commission Proposal, COM(2002) 225 final, Article 15(3). Council doc. 13053/02 of 23 October 2002, p. 19. 779 Boeles/den Heijer et al., European Migration Law, p. 201; Gue `vremont, Vers un traitement ´equitable, p. 220. 780 ‘Residence should be understood as lawful stay’, Commission Communication, COM(2014) 210 final, p. 20. 781 Commission Report, COM(2008) 610 final, p. 13 with reference to Hungary. 782 Commission Proposal, COM(1999) 638 final, Article 13(1). 783 Gue `vremont, Vers un traitement ´equitable, p. 221; Hauschild, Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik 2003, p. 266, 272; Weichselbaum, juridikum 2004, p. 24, 25. 784 Commission Proposal, COM(2002) 225 final, p. 10. 778

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specification of the duration of the autonomous residence permit is left to the Member States (Article 15(4)). The autonomous residence permit must have the effect that the residence permit of a family member may not be withdrawn nor renewal refused if the sponsor’s residence comes to an end (Article 16(3)). The autonomous residence permit provided for by Article 15(1) is to be granted irrespective of whether the sponsor leaves the Member State or the family ties are broken.785

2. Optional limitation to cases of breakdown of the family relationship Article 15 (1) contains an optional limitation clause. By implementing the provision Member States may considerably limit the mandatory content. The provision allows Member States to ‘limit the granting of the residence permit referred to in the first subparagraph to the spouse or unmarried partner in cases of breakdown of the family relationship.’786 Article 15 (1) obliges Member States as a minimum standard to grant an autonomous residence permit to the spouse or unmarried partner in the event of breakdown of the relationship.787 In that case Member States may still require that the conditions mentioned in Article 15(1), i. e. five years of residence and the condition that ‘the family member has not been granted a residence permit for reasons other than family reunification’ must be fulfilled as well. Member States which make use of the optional restriction are (in derogation from Article 15(1)) not obliged to grant an autonomous residence permit to the adult child. 13 In contrast to the English version, the German version of Article 15(1) would be translated into English as ‘The Member States may with regard to the spouse or unmarried partner limit the granting of the autonomous residence permit to cases of breakdown of the family relationship.’788 Consequently, in the German and Austrian literature the provision has been interpreted as allowing Member States to restrict the granting of the autonomous residence permit for spouses or unmarried partners to cases of breakdown of the family relationship, but not for adult children as they are not mentioned in Article 15(1). According to this interpretation, children who have reached majority pursuant to Article 15(1) would acquire an autonomous residence permit after five years of residence at the latest.789 14 The second subparagraph of Article 15(1) was inserted during the final negotiations. The Council documents do not reveal the reasons for the introduction.790 One may only presume that the underlying reason for restricting the granting of an autonomous residence permit was the Member States’ concern about abuse.791 This concern seems to be of a general nature which led Member States to exclude as far as possible the obligation to grant autonomous residence permits. An autonomous residence permit thus should only be granted when the family member is in a particularly vulnerable position because the family relationship has ended. The English version of the provision is reflected also in the Dutch, French, Italian and Spanish versions of the Directive. This leads to the conclusion that the German version is an unintended editorial mistake. Thus, Article 15(1) requires as a minimum standard that spouses and unmarried 12

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Commission Proposal, COM(1999) 638 final, p. 19. Emphasis added. 787 Peers, EU Justice and Home Affairs Law, p. 469. 788 ‘Die Mitgliedstaaten ko ¨ nnen bei Ehegatten oder nicht ehelichen Lebenspartnern die Erteilung des in Unterabsatz 1 genannten Aufenthaltstitels auf Fa¨lle, in denen die familia¨ren Bindungen zerbrechen, beschra¨nken.’ Emphasis added. 789 Ecker, Familienzusammenfu ¨ hrung, p. 97; Hailbronner, Zeitschrift fu¨r das Gesamte Familienrecht 2005, p. 1, 6. 790 The provision was first mentioned in Council doc. 5508/03 of 23 January 2003, p. 19. 791 Gue `vremont, Vers un traitement ´equitable, p. 221. 786

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partners have a right to an autonomous residence permit in case of breakdown of the family relationship, whereas the adult child has none. The term ‘breakdown’ is not specified in the Directive. Member States are, according 15 to Article 15(4), entitled to specify the conditions. However, the cases explicitly mentioned in Article 15(3) (widowhood, divorce, separation, death) may serve as a guideline for interpretation.792

IV. Optional issuance of autonomous residence permits (Article 15(2) and (3)) Article 15(2) ensures that for adult children and relatives in the direct ascending line 16 to whom Article 4(2) applies Member States retain the possibility to grant autonomous residence permits.793 Article 15 does not contain an obligation to grant those persons an autonomous residence permit.794 The issue of an autonomous residence permit to those family members remains discretionary.795 Since only these persons are explicitly mentioned in Article 15(2), other family 17 members may not be granted an autonomous residence permit. Persons not mentioned in Article 15(1) or (2) may nevertheless qualify for long-term resident status under the Long Term Residents’ Directive 2003/109/EC. Article 15(3) ensures that in the event of termination of the family relationship by 18 widowhood, divorce, separation or death of first-degree relatives in the direct ascending or descending line Member States may, optionally, grant family members an autonomous status before the five year period has expired.796 The autonomous residence permit is granted upon application, if national legislation so requires and the persons concerned must have ‘entered by virtue of family reunification’. The phrase ‘first-degree relatives in the direct ascending or descending line’ covers cases in which parents have moved to their children in a Member State as well as children who moved to their parents.797 By contrast to Article 15(1) the granting of a residence title in these cases is discretionary.

V. Autonomous residence permit in particularly difficult circumstances (Article 15(3)) The second sentence of Article 15(3) contains a mandatory provision which obliges 19 Member States to issue an autonomous residence permit when the applicant is in particularly difficult circumstances.798 A minimum qualification period of one year which was contained in the original proposal799 has been waived by the third proposal.800 The Directive does not further define these terms and thus refers to national law.801 However, a comparison with Article 15(3) allows the conclusion that breakdown of a 792

Commission Communication, COM(2014) 210 final, p. 20. Commission Proposal, COM(1999) 638 final, p. 20. 794 Boeles/den Heijer et al., European Migration Law, p. 201. 795 Boeles/den Heijer et al., European Migration Law, p. 202. 796 See Commission Proposal, COM(1999) 638 final, p. 20. 797 Dienelt, Die Auswirkungen der Familienzusammenfu ¨ hrungsrichtlinie auf das AufenthG, p. 125. 798 Commission Proposal, COM(1999) 638 final, p. 20; Boeles/den Heijer et al., European Migration Law, p. 202. 799 Commission Proposal, COM(1999) 638 final, Article 13(3). 800 Commission Proposal, COM(2002) 225 final, Article 15(3). 801 Hailbronner, Zeitschrift fu ¨ r das Gesamte Familienrecht 2005, p. 1, 6. 793

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family relationship alone does not constitute particularly difficult circumstances.802 According to the Explanatory Memorandum to the original proposal, the provision aims at protecting women who have suffered domestic violence by not penalizing them by withdrawal of their residence permit if they decide to leave home or if they are widowed, divorced or repudiated, and who would be in particularly difficult living circumstances if they were obliged to return to the country of origin.803 Thus, Article 15(3) aims at protecting against particular difficult circumstances804 which make it unbearable to continue a family relationship or which result from the dissolution of a family relationship, but not against other difficulties which are not connected to this situation and for which other procedures exist.805 Therefore, Article 15(3) requires that the particular difficult circumstances must be connected to the family relationship or the dissolution of it. Contrary to Article 15(1) in case of the second sentence of Article 15(3) the personal scope of application is not limited to the spouse, the unmarried partner and the adult child.806 It applies to all family members who have entered by virtue of family reunification.807 The second sentence of Article 15(3) may also apply in order to protect minor children.808

VI. Conditions for granting and duration (Article 15(4)) Article 15(4) states that Member States remain competent to decide on the conditions for granting an autonomous residence permit as well as on its duration. The reference to national law is a further restriction of the right to an autonomous residence permit.809 With regard to the duration Article 15(4) indicates that the ‘autonomous’ residence permit does not need to be a permanent one. ‘Autonomous residence permit’ means that it must be independent from the sponsor.810 21 The discretion of the Member States when laying down the conditions is limited by Article 15(1). Thus, national rules may not be so stringent as to make it impossible or excessively difficult to exercise this right. The five-year maximum time limit may not be exceeded. Member States may require the family member to fulfil the conditions for family reunification stipulated by Articles 6 and 7. The practice of the Member States shows that conditions imposed are resource requirements, accommodation requirements, health insurance and integration requirements.811 Furthermore, it should be considered that the European legislator aimed at reaching consistency as far as possible with the Long Term Residents’ Directive 2003/109/EC by extending the maximum period of residence from four to five years in Article 15(1). Thus, when laying down the conditions Member States’ discretion is limited by Article 5 of the Long Term Residents’ Directive 2003/109/EC which specifies requirements such as stable resources, health insurance, and integration conditions.812 20

802

Commission Proposal, COM(1999) 638 final, p. 20. Commission Proposal, COM(1999) 638 final, p. 21. 804 These might comprise risk of female genital manipulation or forced marriages, Commission Communication, COM(2014) 210 final, p. 20. 805 See German Bundesverwaltungsgericht (Federal Administrative Court), Judgment of 9 June 2009, case 1 C 11/08, Neue Zeitschrift fu¨r Verwaltungsrecht 2009, p. 1432, 1436. 806 Gue `vremont, Vers un traitement ´equitable, p. 221. 807 Commission Communication, COM(2014) 210 final, p. 20. 808 See Walter, Familienzusammenfu ¨ hrung in Europa, p. 200, note. 875. 809 Hauschild, Zeitschrift fu ¨ r Ausla¨nderrecht und Ausla¨nderpolitik 2003, p. 266, 272. 810 Gue `vremont, Vers un traitement ´equitable, p. 221. 811 See Groenendijk/Fernhout et al., The Family Reunification Directive, p. 35. 812 Walter, Familienzusammenfu ¨ hrung in Europa, p. 200. 803

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CHAPTER VII Penalties and redress Article 16 1. Member States may reject an application for entry and residence for the purpose of family reunification, or, if appropriate, withdraw or refuse to renew a family member’s residence permit, in the following circumstances: (a) where the conditions laid down by this Directive are not or are no longer satisfied. When renewing the residence permit, where the sponsor has not sufficient resources without recourse to the social assistance system of the Member State, as referred to in Article 7(1)(c), the Member State shall take into account the contributions of the family members to the household income; (b) where the sponsor and his/her family member(s) do not or no longer live in a real marital or family relationship; (c) where it is found that the sponsor or the unmarried partner is married or is in a stable long-term relationship with another person. 2. Member States may also reject an application for entry and residence for the purpose of family reunification, or withdraw or refuse to renew the family member’s residence permits, where it is shown that: (a) false or misleading information, false or falsified documents were used, fraud was otherwise committed or other unlawful means were used; (b) the marriage, partnership or adoption was contracted for the sole purpose of enabling the person concerned to enter or reside in a Member State. When making an assessment with respect to this point, Member States may have regard in particular to the fact that the marriage, partnership or adoption was contracted after the sponsor had been issued his/her residence permit. 3. The Member States may withdraw or refuse to renew the residence permit of a family member where the sponsor’s residence comes to an end and the family member does not yet enjoy an autonomous right of residence under Article 15. 4. Member States may conduct specific checks and inspections where there is reason to suspect that there is fraud or a marriage, partnership or adoption of convenience as defined by paragraph 2. Specific checks may also be undertaken on the occasion of the renewal of family members’ residence permit Content I. Structure and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Grounds for rejection, withdrawal and refusal to renew (Article 16(1)– (3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Non-compliance with the conditions of the Directive (Article 16(1)(a)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. No ‘real’ family relationship (Article 16(1)(b)). . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Relationship with another person (Article 16(1)(c)). . . . . . . . . . . . . . . . . . . . . . 4. False information (Article 16(2)(a)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Relationship of convenience (Article 16(2)(b)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. End of the sponsor’s residence permit (Article 16(3)) . . . . . . . . . . . . . . . . . . . III. Checks and inspections (Article 16(4)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. Structure and drafting history Article 16 combines, in a somewhat unsystematic manner, reasons for rejection of an application for entry and residence with reasons for withdrawal or refusal to renew a family member’s residence permit under the misleading heading ‘penalties and redress’. Article 16 must be read in connection with Article 6 dealing with rejection of an application and withdrawal or refusal on grounds of public policy or public security or public health and with Article 7 which enumerates the basic conditions which Member States may require for granting family reunification. Article 16 refers to the conditions laid down by this Directive which are basically spelled out in Article 7, adding, however, specifications for the interpretation of these conditions and of the general requirement that family reunification is permitted only ‘in order to preserve the family unit’ (see Article 2(d)). 2 The combination of the general rules on rejection of an application with provisions on ‘penalties’ goes back to the drafting history of the provision which originally contained only a specified category of grounds for refusal or withdrawal of a residence permit as a consequence of fraud or abusive behaviour. 3 The original proposal consisted of two paragraphs only spelling out two grounds for refusal of a residence permit. During the negotiations the provision was split up in four paragraphs, expanding the list of grounds for refusal and withdrawal from two to six and setting out the content in more detail. In the final stage of negotiations it was obviously considered necessary to make reference to the conditions which have to be fulfilled in order to grant family reunification in Article 16(1)(a).813 In addition, the original mandatory wording of the predecessor clause of Article 16(4) (‘Member States shall undertake specific checks’) was changed in an optional authorization of Member States (‘Member States may conduct specific checks and inspections’). A reference to Article 6 which covers rejection, withdrawal or refusal to renew a residence permit on grounds of public policy, public security or public health (Article 6) was obviously not considered necessary.814 The second subparagraph of Article 16(1)(a) was changed during the final negotiations. The original provision provided that ‘Member States may require the applicant to satisfy the conditions […] when renewing the residence permit of his family members for the first time’.815 The provision has been changed on request of Germany and Luxembourg, suggesting that Member States should be permitted to require that the sponsor satisfies the necessary conditions of the Directive not only at the moment of the first renewal, but also for any subsequent renewal until the person has been issued a permanent residence permit.816 1

II. Grounds for rejection, withdrawal and refusal to renew (Article 16(1)– (3)) 1. Non-compliance with the conditions of the Directive (Article 16(1)(a)) 4

Article 16(1)(a) provides that rejection of an application, withdrawal and non-renewal may be based on the ground that the conditions of the Directive are not fulfilled 813 814

Commission Proposal, COM(2002) 225 final. Oosterom-Staples, in: Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice?, p. 451,

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any longer. When the condition of sufficient resources (Article 7(1)(c)) is not fulfilled any longer Member States, in deciding upon the renewal of the residence permit, are obliged (‘shall’) to take into account the contributions of the family members to the household income (Article 16(1)(a)). The conclusion that the family members’ contributions do not have to be considered when deciding on withdrawal, since ‘withdrawal’ is not mentioned, would lead to the somewhat strange result that withdrawal is easier to achieve than non-renewal of a residence permit. The purpose of the second subparagraph of Article 16(1)(a) to privilege family members once they are admitted to the territory with regard to resource requirements supports the conclusion that the obligation to take the family members’ contributions into account also applies to the case of withdrawal.

2. No ‘real’ family relationship (Article 16(1)(b)) Several grounds listed in Article 16 concern the non-existence of a relationship that 5 requires protection. Article 16(1)(b) lists the fact that the sponsor and his/her family member do not or no longer live in a ‘real marital or family relationship’ as a ground for refusal. The original wording ‘full’ marital or family relationship was replaced by the term ‘real’.817 A ‘real’ marital or family relationship requires the existence of a genuine bond, as 6 demonstrated e. g. by a common household or regular communication through visits etc. in connection with an ongoing mutual responsibility and care and/or dependence upon the partner of the relationship respectively spouse. When assessing the ‘realness’ of the relationship Member States should try to prevent gendered assumptions and expectations towards the parental involvement in their children’s care and upbringing.818 ‘Real’ family relationship does not require that the persons concerned live in the same household if other factors indicate that family life is exercised. In case of a valid marriage the existence of such a real relationship can be assumed to exist unless there are particular circumstances such as abandonment of a common household and factual separation. No real family relationship between spouses exists where the relationship has come to an end by divorce.819 A real family relationship may also exist outside of a marriage between a father and a 7 child provided that the genuine character can be demonstrated by regular visits, care for the child, fulfilment of financial responsibilities etc. The formal nature of a right of care under national laws does not necessarily mean the existence of a real family relationship if a right of care is not realised. With regard to the family relationship between parents and their children the ECtHR has stated explicitly that ‘cohabitation [is…] not a sine qua non of family life between parents and minor children. […] the relationship created between the spouses by a lawful and genuine marriage […] has to be regarded as ‘family life’ […] a child born of such a union is ipso iure part of that relationship; hence, from the moment of the child’s birth and by the very fact of it, there exists between him and his parents a bond amounting to ‘family life’, even if the parents are not then living together.’820 In contrast to the requirement of a ‘real’ relationship for spouses, the ECtHR has rejected the idea that the existence of a family life between the minor child and his parents depends on the ‘real’ character of the relation which they 817

Oosterom-Staples, in: Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice?, p. 451,

484. 818

Staiano, EJML 2013, p. 155, 157. Grabenwarter, EMRK, p. 205, MN 17. 820 ECtHR, Judgment of 21 June 1988, No. 10730/84, Berrehab v The Netherlands, para 21; Judgment of 19 February 1996, No. 23218/94, Gu¨l v Switzerland, para 32. 819

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maintain and has maintained that this ipso iure family relationship can only be assumed to have ceased in exceptional circumstances.821

3. Relationship with another person (Article 16(1)(c)) According to Article 16(1)(c) the fact that the sponsor or the unmarried partner is married or is in a stable long-term relationship with another person amounts to a ground for refusal. In its original version the refusal ground referred to an applicant‘s marriage or stable family relationship, which would have required an examination in what family or marriage relations a family member or spouse seeking admission is living abroad. The term ‘applicant’, however, was later replaced by the term ‘sponsor’, focussing the requirement upon the person to whom the family reunification is to take place. The change does not imply that an existing marriage or stable family relationship of a family member can be considered as irrelevant for determining whether a real marriage or family relationship exists. Though the Directive explicitly does only exclude family reunification in the event of a polygamous marriage, ‘where the sponsor already has a spouse living with him in the territory of the Member State’ (Article 4(4)), family reunion of spouses already married will generally be excludable since polygamous marriages cannot be considered as marriages enjoying protection under the Directive. In case of an existing stable family relationship abroad the requirement of a ‘real family relationship’ will normally exclude family reunification. 9 The wording of Article 16(1)(c) clarifies that not any extra-conjugal relationship may amount to a ground for refusal but only marriage or a stable long-term relationship. The term ‘stable long-term relationship’ is to be interpreted in analogy to Article 4(3) (see above Article 4, MN 35). 10 Refusal is obligatory where it is found that the conditions of Article 16(1(c) are fulfilled. The clause does complement Article 4(4) on polygamous marriages. While Article 4(4) requires the existence of a ‘spouse living with’ the sponsor in the territory of the Member State, Article 16(1)(c) excludes family reunification even if there are no polygamous living conditions envisaged. The refusal to exclude any polygamous marriage from reunion results from the non-recognition of such relationships. Thus, an existing formal relationship, even if the spouses live separately, will under Article 16(1)(c) exclude family reunion. 11 The inclusion of a stable long-term relationship is based upon similar considerations. Equal residence rights are based on the assumption of a monogamous relationship. National laws on registered partnership will regularly exclude ‘quasi-polygamous’ relationships. Thus, it follows that a long-term relationship precludes any recognisable further relationship which may otherwise entitle for family reunion. 8

4. False information (Article 16(2)(a)) 12

Article 16(2)(a) lists the use of ‘false or misleading information, false or falsified documents’ or that ‘fraud was otherwise committed or other unlawful means were used’ as a ground for refusal. ‘Other unlawful means’ refers to national laws of EU Member States on unlawful influence upon the decision-making process by bribing officials or exercising unlawful pressure. The term is wide enough to cover all categories of incorrect behaviour which under national laws may give rise to administrative measures of withdrawal or termination of validity of an existing permit. The provision does not 821 Martı´n, ‘Immigration et regroupement familial dans l’Union europe ´ene: un droit a` ge´ome´trie variable?’, Revue du Droit de l’Union Europe´enne 4 (2005), p. 721, 756.

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require that the family member was aware of that fact. However, when any such decision is taken due account has to be taken of Article 5(5) and 17.

5. Relationship of convenience (Article 16(2)(b)) Article 16(2)(b) seeks to combat fraud and marriages, adoptions and partnerships of 13 convenience. The Council already adopted a Resolution on measures to combat marriages of convenience in December 1997.822 As the Council noted, marriages of convenience constitute a means of circumventing the rules on entry and residence of third-country nationals. Article 16(2)(b) aims at covering all possible situations of relationships of convenience.823 When making an assessment whether a relationship of convenience has been 14 concluded, Member States may have regard in particular to the fact that the marriage, partnership or adoption was contracted after the sponsor had been issued his/her residence permit (Article 16(2)(b)). The provision seems to allow Member States to distinguish in their national law between relationships concluded before and after the sponsor had been issued a residence permit.824 The provision must be interpreted in the context with other provisions such as Article 16(4) which allows specific checks and inspections where there is reason to suspect the existence of fraud or marriage of convenience while general checks and inspections of a particular category of marriages, such as marriages concluded after the sponsor had been issued a residence permit, are not allowed. The second subparagraph of Article 16(2)(b) does not permit therefore to put subsequent marriages, partnerships or adoptions under general suspicion of being contracted for the purpose of illegal immigration. Thus, the clause must be interpreted restrictively as allowing Member States to enquire into reasons for contracting a subsequent marriage, partnership or adoption only if there are specific indications which give rise to an assessment. This is underlined also by the wording ‘when making an assessment’ which presupposes a reason to make an assessment whether there are circumstances under Article 16(2)(a) or (b) giving rise to a rejection or withdrawal of a residence permit.

6. End of the sponsor’s residence permit (Article 16(3)) Article 16(3) specifies that if the sponsor’s right of residence comes to an end, the 15 members of his/her family must leave the Member State with him/her since their right of residence depends on his/her right. This provision will no longer apply where the family members have obtained autonomous residence rights and consequently the right to stay in the Member State irrespective of the sponsor’s right of residence.825 The provision refers to a ‘right of residence’ rather than a ‘resident permit’. Therefore, it is sufficient that a person is entitled to an autonomous resident permit and does not yet have to hold one, to be protected from withdrawal or refusal to renew the residence permit on the ground of Article 16(3).826

822 Council Resolution (OJ 1997 C 382/1) on measures to be adopted on the combating of marriages of convenience. 823 Commission Proposal, COM(2002) 225 final, p. 11. 824 See Hauschild, Zeitschrift fu ¨ r Ausla¨nderrecht und Ausla¨nderpolitik 2003, p. 266, 272. 825 Commission Proposal, COM(2002) 225 final, p. 11. 826 Peers, EU Justice and Home Affairs Law, p. 469 note 640.

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III. Checks and inspections (Article 16(4)) Article 16(4) adds that Member States may conduct specific checks and inspections where there is reason to suspect that one of the following grounds exists: fraud as specified by Article 16(2)(a) or marriage, partnership or adoption of convenience as defined by Article 16(2)(b). Such checks may not amount to arbitrary interference in family and private life, thus restricting checks to those cases where suspicion of illegality exists.827 The provision prevents Member States from introducing systematic checks on all marriages with third-country nationals. Punctual controls are admissible whereas comprehensive checks are inadmissible.828 There must be a well-founded suspicion in order to carry out an individual check, at the occasion of renewal.829 17 According to Article 16(4) specific checks may also be undertaken at the occasion of renewal of the family members’ residence permits. Unlike in the first sentence, an explicit limitation to cases where ‘there is reason to suspect’ is missing in the second sentence. Therefore, it is not clear whether each request for renewal may trigger checks. However, it cannot be the purpose of the provision to apply stricter criteria when deciding on renewal where a family member already had a secure status, than when deciding on an application for admission. Where there has never been reason to suspect the authenticity of documents it would not be justified to undertake checks.830 16

Article 17 Member States shall take due account of the nature and solidity of the person’s family relationships and the duration of his residence in the Member State and of the existence of family, cultural and social ties with his/her country of origin where they reject an application, withdraw or refuse to renew a residence permit or decide to order the removal of the sponsor or members of his family. Content I. II. III. IV.

General remarks and purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Circumstances of the case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Balancing of interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. General remarks and purpose 1

Article 17 rephrases the considerations Member States have to take into account when taking decisions on entry, stay and expulsion according to the ECtHR’s jurisprudence on Article 8 ECHR.831 The ECJ in the case Parliament v Council832 based its judgment on the compatibility of the Directive with EU law, partly also on Article 8 ECHR as part of the fundamental principles of EU law (see Article 6(3) TEU), arguing 827

Oosterom-Staples, in: Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice?, p. 451, 484. Hailbronner, Zeitschrift fu¨r das Gesamte Familienrecht 2005, p. 1, 6. 829 Hailbronner, Zeitschrift fu ¨ r das Gesamte Familienrecht 2005, p. 1, 6. 830 Oosterom-Staples, in: Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice?, p. 451, 484. 831 Groenendijk, EJML 2006, p. 215, 219; Grabenwarter, EMRK, p. 223, MN 43 et seq; Spijkerboer, ‘Structural Instability: Strasbourg Case Law on Children’s Family Reunion’, EJML 11 (2009), p. 271–293. 832 ECJ, Parliament v Council, C-540/03, EU:C:2006:429. 828

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in this context with Article 17 to which the Court has attributed the function to guarantee the application of the Directive in accordance with Article 8 ECHR.833

II. Drafting history Article 17 was changed only marginally during the negotiation process. The decision 2 to ‘reject an application’ was added to withdrawal and refusal to renew.4834Furthermore, the original proposal stated that Member States ‘shall have proper regard for’835the circumstances listed in the provision, a phrase which was replaced during the final negotiations by the phrase ‘shall take due account of’836which does not seem to have changed the content. During the final negotiations the term ‘applicant’ was replaced by the term ‘sponsor’.

III. Circumstances of the case According to Article 17 Member States have to take the following circumstances into 3 account: (1) nature and solidity of the person’s family relationships, (2) the duration of his residence in the Member State (3) the existence of family, cultural and social ties with his/her country of origin. The circumstances mentioned in Article 17 are not intended as an exclusive description of relevant factors which have to be taken into account. Article 17 is to be interpreted as an obligation to make a comprehensive assessment of all the circumstances which may be relevant in a particular case.837 ‘This obligation also applies when Member States have made use of the possibility of requiring evidence of the fulfilment of certain conditions (such as accommodation, sickness insurance and resources in Article 7), when verifying whether a child over the age of 12 arriving independently meets a condition for integration (Article 4(1)), when a child of over 15 submits an application (Article 4(6)), or when a minimum age for spouses is required (Article 4(5)).’838 Article 17 requires Member States ‘to take account of a number of factors’.839 Other relevant factors are the nature and solidity of family relationships; the age of children concerned; cultural and social ties with the country of origin; living conditions in the country of origin; the fact that a family member has been born and/or raised in the EU Member State; the duration of residence in the Member State; dependency of a family member, spouse or sponsor on the other family members; economic, and social ties in the Member State and the protection of marriages and/or family relations.840

IV. Balancing of interests Member States must ‘take due account’ of the criteria mentioned in Article 17 as well 4 as to the best interests of minor children (Article 5(5)) in any decision concerning entry and residence of family members which fall into the scope of application of the 833

ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 56 and 64. Commission Proposal, COM(2002) 225 final, Article 17. 835 Commission Proposal, COM(1999) 638 final, Article 15, emphasis added. 836 Emphasis added. 837 ECJ, O. & S., joined Cases C-356/11 and C-357/11, EU:C:2012:776, para 81. 838 Commission Communication, COM(2014) 210 final, p. 28. 839 ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 87 and 100. 840 Commission Communication, COM(2014) 210 final, p. 28. 834

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Family Reunification Directive. Thus, the duty to make a comprehensive assessment of all the individual circumstances of a case prevails even when the Directive provides for a right of Member States to make family reunion dependent upon the fulfilment of certain requirements such as the obligation to provide evidence that the sponsor fulfils the conditions of Article 7. Explicitly, Article 17 is not limited to discretionary decisions on withdrawal or refusal to renew a residence permit but also extends to the rejection of an application for family reunification. The comprehensive scope of application of Article 17, however, does not mean that Article 17 grants individual rights to family reunification beyond those granted by the special provisions of the Directive on the exercise of the right to family reunification. The drafting history as well as the systematic context of Article 17 indicate that the major purpose is compliance with the principles recognised in Article 8 ECHR and in the Charter of Fundamental Rights of the European Union concerning protection of family and respect for family life.841 5 According to the ECtHR’s established case law, Article 8 ECHR does not establish a general right for family reunification. Article 8 ECHR, however, may be violated if rejection of family reunification, withdrawal or refusal to renew a residence permit affects an existing family relationship or marriage resulting in a separation of spouses or family members. The ECtHR has obliged contracting states in such cases to pay due regard to the protection of marriages and/or family relationships, when taking an administrative decision on rejection of an application or terminating an existing residence permit. Paying due regard requires that all relevant circumstances have to be ascertained and the respective public and private interest in each individual case balanced. The ECtHR does not prescribe a specified set of criteria on the weight which has to be attributed to a specific individual or public interest in the balancing process of an individual case. Whether protection of marriage and respect of family life prevails over public interests justifying a rejection of an application or a termination of residence permit is a matter of the individual circumstances of each case which is basically within the discretion of contracting states. Article 8 ECHR, thus, implies a wide margin of appreciation for Member States in fulfilling their obligation to take ‘due account’ of the circumstances laid down in Article 17. The limits of the discretion of Member States can only be identified by the ECtHR’s case law which does not always show a very clear picture.842 The following basic principles may be identified from the ECtHR’s jurisprudence: – All individual circumstances of a case must be identified, – the relevant individual interests as well as the public interests must be balanced, – the weight given to individual as well as public interests which the ECHR has attributed to such interests in comparable cases must be ascertained, – the balancing must appear reasonable taking into account the Court’s case law. The ECtHR has in principle recognised that a basic distinction can be made between the decision on rejecting an application for family reunification and administrative decisions terminating a lawful residence which in turn affects an existing family relationship. As to the rejection of an application for the purpose of marriage, the Court has stated the principle that Article 8 ECHR does not imply a right of choice of the country of residence: The present case concerns not only family life but also immigration, and the extent of a State’s obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved and the general interest. As a matter of well-established international law and subject to its treaty 841

Recital 2. See also German Bundesverfassungsgericht (Federal Constitutional Court), Decision of 1 March 2004, case 2 BvR 1570/03, Neue Zeitschrift fu¨r Verwaltungsrecht 2004, 852. 842

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obligations, a State has the right to control the entry of non-nationals into its territory.843 Moreover, where immigration is concerned, Article 8 cannot be considered to 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. In order to establish the scope of the State’s obligations, the facts of the case must be considered.844 Only under the condition that, exclusively, in the contracting state marriage may be 6 realised, the Court has considered that a right to family reunification may arise from Article 8 ECHR. Basically, the same principles apply in the case of family reunification for family members who until now have lived separately from other family members. In the case Ahmut845 the ECtHR has held the rejection of an application for family reunion of a nine year old Moroccan minor, applying for family reunification in order to move to his father living in the Netherlands, as justified. In the Sen case846 and in the cases Tuquabo-Thekle847 and Rodrigues da Silva and Hoogkamer,848 the Court has derived a right to family reunification from Article 8 ECHR, arguing in the Sen case that a denial of family reunification for a child who had grown up in Turkey to his parents living in the Netherlands could not be justified since there would be no realistic alternative in order to establish family reunification than granting family reunification. Much stricter requirements in terms of prevailing public interests were applied by the 7 ECtHR in cases involving expulsion, refusal to renew a residence permit, affecting an existing family relationship on the territory of the contracting state. The Court requires a very strict scrutiny which takes into account in particular whether a person has lost its ties to a home country and established a real family life on the territory of the contracting state. An expulsion, therefore, may be unproportional even in the case of a continuing criminal career in connection with a high danger of repetition of serious crimes.849 In particular foreign nationals who in the course of their personal development became factually a part of the domestic population and who cannot be reasonably assumed to return into the country of origin to which they have no true connections anymore, may not be expelled.850 On the other hand, the proportionality of an expulsion has been accepted in cases in which the foreigner did still have social ties to his country or origin. In any case Member States should state the crucial reasons in decisions rejecting applications.851

Article 18 The Member States shall ensure that the sponsor and/or the members of his/her family have the right to mount a legal challenge where an application for family

843 see, among other authorities, ECtHR, Judgment of 28 May 1985, No. 9214/80, 9473/81, 9474/81, Abdulaziz, Cabales and Balkandali v. the United Kingdom, para 67. 844 see, mutatis mutandis, ECtHR, Judgment of 28 May 1985, No. 9214/80, 9473/81, 9474/81, Abdulaziz, Cabales and Balkandali v. the United Kingdom, para 68; Judgment of 20 March 1991, Cruz Varas and Others v. Sweden, No. 15576/89, para 88 and ECtHR, Judgment of 19 February 1996, No. 23218/94, Gu¨l v Switzerland, para 38. 845 ECtHR, Judgment of 28 November 1996, No. 21702/93, Ahmut v The Netherlands. 846 ECtHR, Judgment of 21 December 2001, No. 31465/96, Sen v The Netherlands, para 41. 847 ECtHR, Judgment of 1 December 2005, No. 60665/00, Tuquabo-Thekle v The Netherlands, para 50. 848 ECtHR, Judgment of 31 January 2006, No. 50435/99, Rodrigues da Silva and Hoogkamer v The Netherlands, para 38. 849 ECtHR, Judgment of 13 July 1995, No. 19465/92, Nasri v France, series A No. 320/B, p. 38. 850 ECtHR, judgment of 11 July 2002, No. 56811/00, Amrollahi v Denmark, para 44. 851 Commission Communication, COM(2014) 210 final, p. 28.

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reunification is rejected or a residence permit is either not renewed or is withdrawn or removal is ordered. The procedure and the competence according to which the right referred to in the first subparagraph is exercised shall be established by the Member States concerned. Content I. II. III. IV.

General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The right to mount a legal challenge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procedure and competences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 4 12

I. General remarks 1

Article 18 obliges Member States to grant a legal remedy against decisions of the national authorities. Provisions on legal remedies are contained in all new Directives on admission of third-country nationals.852 For Union citizens and their family members as well as persons benefitting from the Association Agreements with Turkey effective judicial protection is one of the basic principles established by the ECJ’s case law.853

II. Drafting history Whereas the first two proposals granted a ‘right to apply to the courts of the Member State concerned’854 and the third proposal even granted a ‘de facto and de jure right to apply to the courts’855 the final Directive provides for a ‘right to mount a legal challenge’856. Furthermore, the phrase ‘applicant and the members of his family’857 was changed to ‘sponsor and/or the members of his/her family’ during the negotiations in the Council, although this had not yet been reflected in the third proposal.858 The change reflects a change in Article 5(1) which was introduced by the third proposal.859 The term ‘sponsor’ was considered more appropriate to reflect the new provision that the sponsor must not necessarily be the applicant and it is for the Member States to decide whether the application shall be submitted by the sponsor or the family member (see Article 5(1)).860 3 The second subparagraph which obliges Member States to establish rules on the procedure as well as the competence for the exercise of the control power envisaged under the first subparagraph was for the most part inserted by the third proposal.861 2

852 See Article 10(2) of the Long Term Residents Directive 2003/109/EC; Article 29 of the Temporary Protection Directive 2001/55; Article 18(4) of the Students Directive 2004/114/EC. 853 Inter alia ECJ, Smits and Peerbooms, C-157/99, EU:C:2001:404, para 90; Panayotova, C-327/02, EU:C:2004:718, para 27. 854 Commission Proposal, COM(1999) 638 final, Article 16; Commission Proposal, COM(2000) 624 final, Article 16, emphasis added. 855 Commission Proposal, COM(2002) 225 final, Article 18(1), italic in the original. 856 Emphasis added. 857 Commission Proposal, COM(1999) 638 final, Article 16; Commission Proposal, COM(2000) 624 final, Article 16; Commission Proposal, COM(2002) 225 final, Article 18, emphasis added. 858 Commission Proposal, COM(2002) 225 final, Article 18. 859 Commission Proposal, COM(2002) 225 final, Article 7(1), emphasis added. 860 See Council doc. 5682/01 of 31 January 2001, p. 3 note on the definition of the term ‘applicant’ in Article 2(c): ‘Many delegations felt that the drafting of point (c) should be reviewed in certain language versions to take account of the amended wording of Article 7 (1), first sentence which provides for the application to be made either by the person lawfully residing in a Member State or by the family members residing outside the Union. To that end it was suggested to replace ‘applicant’ in the English version by ‘sponsor’[…].’ The change was first realised in Council doc. 6450/01 of 6 March 2001, p. 23, Article 16. 861 Commission Proposal, COM(2002) 225 final, Article 18(2).

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However the words ‘and the competence’ were only inserted afterwards during the final negotiations.

III. The right to mount a legal challenge Article 18 stipulates a right to mount a ‘legal challenge’ regarding four possible decisions of national authorities: (1) rejection of an application for family reunification, (2) refusal to renew a residence permit, (3) withdrawal of a residence permit and (4) order of removal from the territory of a Member State. Member States must ensure that such decisions may be challenged concerning the merits and legality. It is therefore insufficient to grant review only with regard to the law but not to the facts of a case.862 Other types of administrative action such as the failure to decide on an application for family reunification, restrictions of the right to employment (Article 14(2)) or a refusal to grant an independent residence title (Article 15) are not mentioned in Article 18. Concerning the failure to decide, Article 5(4) specifies that any consequences of no decision being taken by the end of the period provided for in the first subparagraph of Article 5(4) shall be determined by the national legislation of the relevant Member State. Thus, it depends on the national legislation whether a right to mount a legal challenge is provided in the case of failure to decide or whether failure to decide leads to automatic admission of family members. With regard to other decisions not explicitly mentioned in Article 18 concerning the restriction of rights conferred to by the Directive, remedies must be granted according to the jurisprudence of the ECJ. According to the ECJ subjective rights must be granted effectively which includes rights to an effective remedy. Therefore, it seems that the decision on family reunification mentioned in Article 18 includes decisions on restrictions of the rights emerging from admission to family reunification, such as the right to employment (Article 14(1)(b)). Member States are therefore obliged to provide a legal challenge also in the case of Articles 14 and 15 of the Directive. Whether the phrase ‘to mount a legal challenge’ includes administrative remedies or is restricted to judicial remedies is subject to debate. The ECJ seems to have understood the provision as to guarantee review by courts.863 In the case Parliament v Council (C540/03) the ECJ stated: ‘Implementation of the Directive is subject to review by the national courts since, as provided in Article 18 thereof, ‘the Member States shall ensure that the sponsor and/or the members of his/her family have the right to mount a legal challenge where an application for family reunification is rejected or a residence permit is either not renewed or is withdrawn or removal is ordered’. If those courts encounter difficulties relating to the interpretation or validity of the Directive, it is incumbent upon them to refer a question to the Court for a preliminary ruling in the circumstances set out in Articles 68 EC and 234 EC.’864 It has been concluded from this judgment that Article 18 includes at least one level of judicial challenge concerning the merits and the legality of any decision.865 This conclusion finds some support in the jurisdiction of the EJC concerning effective legal protection for Union citizens and persons covered by Association Agreements. With regard to the fundamental freedoms of Community law and the rights conferred by the Association Agreements EC-Bulgaria the ECJ considered that Community law requires 862

Commission Report, COM(2008) 610 final, p. 12. Peers, EU Justice and Home Affairs Law, p. 471; Peers, EJML 2009, p. 387, 396 note 82. 864 ECJ, Parliament v Council, C-540/03, EU:C:2006:429, para 106, emphasis added. 865 Peers, EU Justice and Home Affairs Law, p. 471. 863

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effective judicial or quasi-judicial review to be necessary.866 Codifying this jurisprudence Article 47 CFR guarantees an effective remedy before a ‘tribunal’. The Commissions is of the opinion that ‘quasi-judicial or administrative review may not be adequate’.867 8 Yet, the drafting history does not confirm this interpretation. The phrase ‘right to mount a legal challenge’ was inserted in Article 18 during the final negotiations in order to replace the phrase ‘right to apply to the courts’ which was contained in all three proposals.868 According to the Commission the original provision was meant to ensure access to judicial redress procedures enabling to challenge a decision, even if other redress procedures have been available at earlier stages.869 The question whether ‘judicial’ remedies should be granted was explicitly discussed in the Council870 with regard to the Swedish and Austrian situation, both countries only granting administrative remedies.871 The term ‘apply to the courts’ was subsequently deleted during the final negotiations.872 The drafting history therefore would seem to support an interpretation leaving a discretion to Member States whether to grant administrative or judicial review or both.873 9 Furthermore, the wording ‘to mount a legal challenge’ corresponds to Article 29 of the Temporary Protection Directive 2001/55/EC and Article 10(2) of the Long Term Residents’ Directive 2003/109/EC. The first proposal on the Temporary Protection Directive 2001/55/EC guaranteed: ‘The persons concerned shall be entitled to seek redress in the courts of the Member State concerned’874 which was later replaced by a reference to a ‘legal challenge’.875 The Students Directive 2004/114/EC as well provides for a right to ‘legal challenge to the authorities’.876 In contrast, the Free Movement Directive 2004/38/EC grants ‘access to judicial and where appropriate administrative redress procedures’.877 Thus, with regard to legal remedies the Directives on admission of third-country nationals – with the exception of family members of Union citizens – do not seem to require access to a court provided that administrative independent bodies are entrusted with the power to exercise effective control. This interpretation also seems to be in line with Article 13 ECHR to which the ECJ has referred to as a source for a general principle of effective remedy.878 The ECtHR has stated that Article 13 866 ECJ, Smits and Peerbooms, C-157/99, EU:C:2001:404, para 90; Panayotova, C-327/02, EU:C:2004:718, para 27, emphasis added. 867 Commission Communication, COM(2014) 210 final, p. 29. 868 Commission Proposal, COM(2002) 225 final, Article 18(1), emphasis added. 869 Commission Proposal, COM(1999) 638 final, Explanatory Memorandum on Article 16, p. 21. 870 Council docs. 11524/00 of 4 January 2001, p. 26 and 5682/01 of 31 January 2001, p. 24; 871 Council doc. 13053/02 of 23 October 2002, p. 22, note 1: ‘D and S maintained scrutiny reservations on this provision. In particular, D raised the question of the consistency of Article 18 with similar provisions contained in other legal instruments in the areas of immigration and asylum. According to S, supported by NL, this provision should make reference to instances of appeal, rather than to courts. In this context the Cion noted that the word courts used in the English version does not entirely correspond to the word juridiction, contained in the original French text, which may be interpreted in a wider sense. The Pres drew attention to the terminology (to mount a legal challenge) used in Article 29 of the Council Directive 2001/55/EC 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 consequence thereof (OJ L 212 of 7.8.2001, p. 12).’ 872 Hauschild, Zeitschrift fu ¨ r Ausla¨nderrecht und Ausla¨nderpolitik 2003, p. 266, 272; Council doc. 14272/02 of 26 November 2002, p. 22. 873 Gue `vremont, Vers un traitement ´equitable, p. 232. 874 Commission Proposal, COM(2000) 303 final, Article 29(2). 875 Article 29, emphasis added. 876 Article 18(4), emphasis added. 877 Article 31(1), emphasis added. 878 ECJ, Panayotova, C-327/02, EU:C:2004:718, para 27.

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ECHR which grants ‘effective remedy before a national authority’ requires review by an instance which must not necessarily be judicial;879 therefore, quasi-judicial or administrative review is sufficient.880 Whether this interpretation can be upheld in the light of Article 47 CFR guaranteeing 10 explicitly a right to an effective remedy and to a fair trial ‘before a tribunal’, is highly doubtful.881 Article 47 CFR requires a violation of the rights and freedoms granted by the law of the Union. Therefore, insofar as rights are granted either by primary or secondary EU law, Article 47 CFR requires that a judicial remedy is available which implies full judicial review with regard to the merits as well as to the legality of an administrative decision. The same conclusion may be drawn by looking upon the settled case law of the ECJ. The Court restated the principle of effective judicial protection as a general principle of Community law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 ECHR, this principle having furthermore been reaffirmed by Article 47 CFR.882 The Court’s case law implies that at least with regard to such legal positions which are claimed to be a right access to judicial authorities must be available. Review by an independent instance must be guaranteed883 and the tribunal deciding upon an appeal must be impartial and previously established by law.884 Hence, it might well be argued that (even though there is no explicit requirement) legal challenges must be brought before the courts because of the human right protection forming part of EU law.885 According to Article 18 the ‘sponsor and/or the members of his/her family’886 has the 11 right to mount the legal challenge, whereas the original proposal entitled the ‘applicant and the members of his family’.887 The word ‘or’ was inserted in order to clarify that where a family member, subject to a removal order was no longer present, Member States may provide that he or she is not him- or herself entitled to ask for review from abroad and only the sponsor is entitled to apply.888 Thus, Member States may decide whether the right to mount a legal challenge is granted to the sponsor, the family member or both. The Commission supports granting the right to mount a legal challenge to both to facilitate the effective exercise of this right.889

IV. Procedure and competences Member States are competent to specify the procedure and competences with regard 12 to the right to mount a legal challenge in their national legislation.890 Member States are free to decide whether an appeal may be filed from outside the Member State concerned. Member States may choose a central authority to be competent. Depending 879 ECtHR, Judgment of 25 March 1983, No. 5947/72; 6205/73; 7052/75; 7061/75; 7107/75; 7113/75; 7136/75, Silver and others v The United Kingdom, para 113b. 880 Drzemczewski/Giakoumopoulos, in Pettiti/De ´caux/Imbert (eds), La convention europe´enne des droits de l’homme (Economica, 1999), Article 13, p. 465; cf. also Thym, Long Term Residents Directive 2003/109/EC, Article 10 MN 3. 881 See Peers, EU Justice and Home Affairs Law, p. 471. 882 ECJ, joined cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat International Foundation v Council and Commission, EU:C:2008:461, para 335; Unibet, C-432/05, EU:C:2007:163, para 37. 883 Ecker, Familienzusammenfu ¨ hrung, p. 101. 884 See Article 47 CFR. 885 Peers, EU Justice and Home Affairs Law, p. 471. 886 Emphasis added. 887 Commission Proposal, COM(2002) 225 final, Article 18(1), emphasis added. 888 Council doc. 11524/00 of 4 January 2001, p. 26. 889 Commission Communication, COM(2014) 210 final, p. 29. 890 Commission Proposal, COM(2002) 225 final, Explanatory Memorandum on Article 18, p. 11.

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on the national legislation appeal procedures may be dealt within the ordinary court system or specialised tribunals.891 13 Whether interim procedures may be challenged is regulated differently under the national law of the Member States. For example in Austria exhaustion of the annual quota system cannot be challenged separately.892 In some Member States refusal of a visa may not be challenged since EU law does in general not provide an individual right to be granted a visa.893 In Germany and in the Netherlands the failure to pass the preentry language test cannot be challenged separately.894 Since the final decision on admission for family reunification may be challenged Article 18 is not violated if Member States do not provide a right to challenge interim procedures separately. Member States are however free to grant legal remedies against decisions beyond the scope of application of the Directive or other directives granting individual rights. 14 Legal aid may be granted, but this is not an obligation according to the Directive. There is no provision as to the costs of procedures. Thus, Member States may require certain fees for review. The level of these fees must be proportionate to the costs of the procedure and must not nullify the right to legal challenge (see above Article 5 MN 6). 15 The question whether a legal challenge against an expulsion decision has suspensive effect was raised by the Dutch delegation and replied to the negative by the Commission.895 However, the text does not explicitly exclude the possibility for suspensive effect.896 Member States may therefore provide for suspensive effect under national law.

CHAPTER VIII Final provisions Article 19 Periodically, and for the first time not later than 3 October 2007, the Commission shall report to the European Parliament and the Council on the application of this Directive in the Member States and shall propose such amendments as may appear necessary. These proposals for amendments shall be made by way of priority in relation to Articles 3, 4, 7, 8 and 13.

Article 20 Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by not later than 3 October 2005. They shall forthwith inform the Commission thereof. When Member States adopt these measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States. 891 Commission Report, COM(2008) 610 final, p. 12; see Groenendijk/Fernhout et al., The Family Reunification Directive, p. 57. 892 Commission Report, COM(2008) 610 final, p. 12. 893 Commission Report, COM(2008) 610 final, p. 12; Groenendijk/Fernhout et al., The Family Reunification Directive, p. 57. 894 For the Netherlands see Groenendijk, EJML 2006, p. 215, 217. 895 Council doc. 11524/00 of 4 January 2001, p. 26. 896 Gue `vremont, Vers un traitement ´equitable, p. 231.

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Art. 19–22

Part C II

Article 21 This Directive shall enter into force on the day of its publication in the Official Journal of the European Union.

Article 22 This Directive is addressed to the Member States in accordance with the Treaty establishing the European Community. Content I. General remarks and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Final provisions (Articles 19–22) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3

I. General remarks and drafting history Chapter VIII (Articles 19–22) contains the final provisions which correspond to those 1 typically included in similar directives. The provisions mainly concern entry into force and transposition period of the Directive as well as reporting duties of the Member States and of the Commission. Article 19 was changed by the third proposal mainly by extending the one-time 2 reporting duty of the Commission to a regular reporting duty. Furthermore, the obligation to suggest proposals concerning specific articles was inserted by the third proposal.897

II. Final provisions (Articles 19–22) Article 19 imposes on the Commission a duty to regularly report to the European 3 Parliament and the Council on the application of the Directive in the Member States and to suggest amendments whereby Article 19 lists the articles for which proposals for amendments shall be presented by way of priority (Article 3 – scope of application, Article 4 – family members, Article 7 – conditions, Article 8 – waiting period and Article 13 – duration of a residence permit of the Directive). The articles concerned are those which currently offer the Member States a great deal of flexibility and shall be limited at the next stage of the harmonisation process.898 The first Commission Report was due for 3 October 2007 and was finally issued on 4 8 October 2008.899 The Report revealed shortcomings in the implementation mainly with regard to provisions on visa facilitation (Article 13(1)), granting autonomous residence permits (Article 15), taking into account the best interest of the child (Article 5(5)), legal redress (Article 18) and more favourable provisions for family reunification of refugees (Articles 9–12).900 However, according to the Commission due to the low-level binding character the Directive’s impact on harmonisation in the field of family reunification remained rather limited.901 In 2011, the Commission 897

Commission Commission 899 Commission 900 Commission 901 Commission 898

Proposal, COM(2002) 225 final, Article 19(2). Proposal, COM(2002) 225 final, p 11. Report, COM(2008) 610 final. Report, COM(2008) 610 final, p. 14. Report, COM(2008) 610 final, p. 14.

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published a Green Paper to gather information on the application of the Directive and opinions on how to shape EU rules more effective.902 The responses903 were discussed at a public hearing in the framework of the European Integration Forum904 and lead to a consensus not to re-open the Directive, but to ensure full implementation.905 Therefore, the Commission provided guidance on how to apply the Directive by publishing guidelines reflecting the current views of the Commission on 3 April 2014.906 5 According to Article 21 the Directive entered into force on the day of its publication in the Official Journal of the European Union which was 3 October 2003.907 The twoyear transposition period ended on 3 October 2005 (Article 20). The territorial scope of application of the Directive includes 24 out of the 27 Member States. The United Kingdom, Ireland and Denmark are not bound by the Directive.908 6 Article 20 imposes a duty on the Member States to inform the Commission about their implementation measures. Following expiry of the transposition deadline, infringement procedures were started against 19 Member States for non-communication of their transposition measures. Subsequently, in accordance with Article 258 TFEU, the Commission addressed ten reasoned opinions.909 Decisions to bring cases before the ECJ were taken for four Member States: three were withdrawn and a judgment was given for one.910 7 When the Commission published its first Report COM (2008) 610 final on the application of the Directive on 6 October 2008 nearly all 24 Member States bound by the Directive had transposed the Directive into domestic law. Luxembourg was still in process of transposition and Spain had not yet included a formal explicit reference (harmonisation clause) in its national legislation.911 902

Commission Green Paper, COM(2011) 735 final. The answers to the consultation are available at: http://ec.europa.eu/dgs/home-affairs/what-is-new/ public-consultation/2012/consulting_0023_en.htm [last accessed 27 January 2015] 904 7th meeting of the European Integration Forum: Public Hearing on the Right to Family Reunification of Third-Country Nationals living in the EU. Summary Report available at: http://ec.europa.eu/ewsi/ UDRW/images/items/static_38_597214446.pdf [last accessed 27 January 2015] 905 Commission Communication, COM(2014) 210 final, p. 2. 906 Commission Communication, COM(2014) 210 final. 907 OJ 2003 L 251/12. 908 Article 1 and 2 of the Protocol annexed to the TEU (Nice version) and TEC, see recitals 17 and 18 of the Directive. 909 Commission Report, COM(2008) 610 final, p. 3. 910 ECJ, Commission v Luxembourg, C-57/07, EU:C:2007:765. 911 Commission Report, COM(2008) 610 final, p. 3. 903

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III. Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents Official Journal L 16, 23/01/2004, p. 44–53 Selected Bibliography: Acosta Arcarazo, ‘Civic Citizenship Reintroduced? The Long-Term Residence Directive as a Post-National Form of Membership’, ELJ 21 (2015), p. 200–219; Acosta Arcarazo, The Long-Term Residence Status as a Subsidiary Form of EU Citizenship (Martinus Nijhoff, 2011); Bast, ¨ ffnung der ‘Transnationale Migrationsverwaltung des europa¨ischen Migrationsraums: Zur horizontalen O EU-Mitgliedstaaten’, Der Staat 46 (2007), p. 1–32; Bo¨cker/Strik, ‘Language and Knowledge Tests for Permanent Residence Rights: Help or Hindrance for Integration?’, EJML 13 (2011), p. 157–184; BoelaertSuominen, ‘Non-EU Nationals and Council Directive 2003/109/EC on the Status of Third-Country Nationals Who are Long-Term Residents: five paces forward and possibly three paces back’, CML Rev. 42 (2005), p. 1011–1052; Boeles et al., European Migration Law, 2nd edn (Intersentia, 2014); Bribosia, ‘Les Politiques d’inte´gration de l’Union europe´enne et des E´tats Membres a` l’e´preuve du principe de nondiscrimination’, in: Pascouau/Strik (eds): Which Integration Policies for Migrants? Interaction between the EU and its Member States (Wolf, 2012), p. 51–81; Carrera, ‘Integration of Immigrants in EU Law and Policy: Challenges to Rule of Law, Exceptions to Inclusion’, in: Azoulai/De Vries (eds): EU Migration Law (OUP, 2014), p. 149–187; Groenendijk, ‘Citizens and Third-Country Nationals: Differential Treatment or Discrimination’, in: Carlier/Guild (eds): L’avenir de la libre circulation des personnes dans l’U. E. The Future of Free Movement of Persons in the EU (Bruylant, 2006), p. 79–102; Groenendijk, ‘The Long-Term Residents Directive, Denizenship and Integration’, in: Toner et al. (eds): Whose Freedom, Security and Justice? EU Immigration and Asylum Law and Policy (Hart, 2007), p. 429–451; Groenendijk/Guild, ‘Converging Criteria: Creating an Area of Security of Residence for Europe’s Third Country Nationals’, EJML 3 (2001), p. 37–59; Guild, The Legal Elements of European Identity (Kluwer, 2004); Hailbronner, Ausla¨nderrecht. Kommentar, looseleaf 84th Edition (C.F. Mu¨ller; 2014); Guild, ‘Langfristig aufenthaltsberechtigte Drittstaatsangeho¨rige’, Zeitschrift fu¨r Ausla¨nderrecht (2004), p. 163–168; Halleskov, ‘The Long-Term Residents Directive: A Fulfilment of the Tampere Objective of Near-Equality?’, EJML 7 (2005), p. 181–202; Handoll, ‘Directive 2003/109/EC’, in: Hailbronner (ed), EU Immigration and Asylum Law. Commentary, 1st edition (C.H. Beck, 2010); Handoll, ‘The Long-Term Residents Directive’, in: Carlier/de Bruycker (eds), Immigration and Asylum Law of the EU. Current Debates (Bruylant, 2003), p. 144–160; Hauschild, ‘Neues europa¨isches Einwanderungsrecht: Das Daueraufenthaltsrecht von Drittstaatsangeho¨rigen’, Zeitschrift fu¨r Ausla¨nderrecht (2003), 350–353; Iglesias Sa´nchez, ‘Free Movement of Third Country Nationals in the European Union?’, ELJ 15 (2009), p. 791–805; Peers, ‘Transfer of International Protection and European Union Law’, IJRL 24 (2012), p. 527–560; Peers et al. (eds), EU Immigration and Asylum Law (Text and Commentary): Second Revised Edition. Volume 2: EU Immigration Law (Martinus Nijhoff, 2012); Peers, ‘Implementing Equality? The Directive on Long-Term Resident Third Country Nationals’, EL Rev. 29 (2004), 437–460; Skordas, ‘Immigration and the Market: The Long-Term Residence Directive’, CJEL 13 (2006), 201–229; ter Steeg, Das Einwanderungskonzept der EU (Nomos, 2006); Thym, ‘EU Migration Policy and its Constitutional Rationale’, CML Rev. 50 (2013), p. 709–736; Thym, ‘Residence as de facto Citizenship?’, in: Rubio-Marin (ed), Human Rights and Immigration (OUP, 2014), p. 106–144; Thym, ‘The Elusive Limits of Solidarity. Residence Rights of and Social Benefits for Economically Inactive Union Citizens’, CML Rev. 52 (2015), p. 17–50; Wiesbrock, Legal Migration to the European Union (Martinus Nijhoff, 2010).

THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 63(3) and (4) thereof, Having regard to the proposal from the Commission(1), Having regard to the opinion of the European Parliament(2), Having regard to the opinion of the European Economic and Social Committee(3), (1)

OJ C 240 E, 28.8.2001, p. 79. OJ C 284 E, 21.11.2002, p. 102. (3) OJ C 36, 8.2.2002, p. 59. (2)

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Having regard to the opinion of the Committee of the Regions(4), Whereas: (1) With a view to the progressive establishment of an area of freedom, security and justice, the Treaty establishing the European Community provides both for the adoption of measures aimed at ensuring the free movement of persons, in conjunction with flanking measures relating to external border controls, asylum and immigration, and for the adoption of measures relating to asylum, immigration and safeguarding the rights of third-country nationals. (2) The European Council, at its special meeting in Tampere on 15 and 16 October 1999, stated that the legal status of third-country nationals should be approximated to that of Member States’ nationals and that a person who has resided legally in a Member State for a period of time to be determined and who holds a long-term residence permit should be granted in that Member State a set of uniform rights which are as near as possible to those enjoyed by citizens of the European Union. (3) This Directive respects the fundamental rights and observes the principles recognised in particular by the European Convention for the Protection of Human Rights and Fundamental Freedoms and by the Charter of Fundamental Rights of the European Union. (4) The integration of third-country nationals who are long-term residents in the Member States is a key element in promoting economic and social cohesion, a fundamental objective of the Community stated in the Treaty. (5) Member States should give effect to the provisions of this Directive without discrimination on the basis of sex, race, colour, ethnic or social origin, genetic characteristics, language, religion or beliefs, political or other opinions, membership of a national minority, fortune, birth, disabilities, age or sexual orientation. (6) The main criterion for acquiring the status of long-term resident should be the duration of residence in the territory of a Member State. Residence should be both legal and continuous in order to show that the person has put down roots in the country. Provision should be made for a degree of flexibility so that account can be taken of circumstances in which a person might have to leave the territory on a temporary basis. (7) To acquire long-term resident status, third-country nationals should prove that they have adequate resources and sickness insurance, to avoid becoming a burden for the Member State. Member States, when making an assessment of the possession of stable and regular resources may take into account factors such as contributions to the pension system and fulfilment of tax obligations. (8) Moreover, third-country nationals who wish to acquire and maintain long-term resident status should not constitute a threat to public policy or public security. The notion of public policy may cover a conviction for committing a serious crime. (9) Economic considerations should not be a ground for refusing to grant longterm resident status and shall not be considered as interfering with the relevant conditions. (10) A set of rules governing the procedures for the examination of application for long-term resident status should be laid down. Those procedures should be effective and manageable, taking account of the normal workload of the Member States’ administrations, as well as being transparent and fair, in order to offer appropriate legal certainty to those concerned. They should not constitute a means of hindering the exercise of the right of residence. (4)

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Long-Term Residents Directive 2003/109/EC

(11) The acquisition of long-term resident status should be certified by residence permits enabling those concerned to prove their legal status easily and immediately. Such residence permits should also satisfy high-level technical standards, notably as regards protection against falsification and counterfeiting, in order to avoid abuses in the Member State in which the status is acquired and in Member States in which the right of residence is exercised. (12) In order to constitute a genuine instrument for the integration of long-term residents into society in which they live, long-term residents should enjoy equality of treatment with citizens of the Member State in a wide range of economic and social matters, under the relevant conditions defined by this Directive. (13) With regard to social assistance, the possibility of limiting the benefits for long-term residents to core benefits is to be understood in the sense that this notion covers at least minimum income support, assistance in case of illness, pregnancy, parental assistance and long-term care. The modalities for granting such benefits should be determined by national law. (14) The Member States should remain subject to the obligation to afford access for minors to the educational system under conditions similar to those laid down for their nationals. (15) The notion of study grants in the field of vocational training does not cover measures which are financed under social assistance schemes. Moreover, access to study grants may be dependent on the fact that the person who applies for such grants fulfils on his/her own the conditions for acquiring long-term resident status. As regards the issuing of study grants, Member States may take into account the fact that Union citizens may benefit from this same advantage in the country of origin. (16) Long-term residents should enjoy reinforced protection against expulsion. This protection is based on the criteria determined by the decisions of the European Court of Human Rights. In order to ensure protection against expulsion Member States should provide for effective legal redress. (17) Harmonisation of the terms for acquisition of long-term resident status promotes mutual confidence between Member States. Certain Member States issue permits with a permanent or unlimited validity on conditions that are more favourable than those provided for by this Directive. The possibility of applying more favourable national provisions is not excluded by the Treaty. However, for the purposes of this Directive, it should be provided that permits issued on more favourable terms do not confer the right to reside in other Member States. (18) Establishing the conditions subject to which the right to reside in another Member State may be acquired by third-country nationals who are long-term residents should contribute to the effective attainment of an internal market as an area in which the free movement of persons is ensured. It could also constitute a major factor of mobility, notably on the Union’s employment market. (19) Provision should be made that the right of residence in another Member State may be exercised in order to work in an employed or self-employed capacity, to study or even to settle without exercising any form of economic activity. (20) Family members should also be able to settle in another Member State with a long-term resident in order to preserve family unity and to avoid hindering the exercise of the long-term resident’s right of residence. With regard to the family members who may be authorised to accompany or to join the long-term residents, Member States should pay special attention to the situation of disabled adult children and of first-degree relatives in the direct ascending line who are dependent on them.

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(21) The Member State in which a long-term resident intends to exercise his/her right of residence should be able to check that the person concerned meets the conditions for residing in its territory. It should also be able to check that the person concerned does not constitute a threat to public policy, public security or public health. (22) To avoid rendering the right of residence nugatory, long-term residents should enjoy in the second Member State the same treatment, under the conditions defined by this Directive, they enjoy in the Member State in which they acquired the status. The granting of benefits under social assistance is without prejudice to the possibility for the Member States to withdraw the residence permit if the person concerned no longer fulfils the requirements set by this Directive. (23) Third-country nationals should be granted the possibility of acquiring longterm resident status in the Member State where they have moved and have decided to settle under comparable conditions to those required for its acquisition in the first Member State. (24) Since the objectives of the proposed action, namely the determination of terms for granting and withdrawing long-term resident status and the rights pertaining thereto and terms for the exercise of rights of residence by long-term residents in other Member States, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the action, be better achieved by the Community, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary to achieve those objectives. (25) In accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, and without prejudice to Article 4 of the said Protocol, these Member States are not participating in the adoption of this Directive and are not bound by or subject to its application. (26) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and the Treaty establishing the European Community, Denmark does not take part in the adoption of this Directive, and is not bound by it or subject to its application, HAS ADOPTED THIS DIRECTIVE:

CHAPTER I GENERAL PROVISIONS Article 1 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.

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Long-Term Residents Directive 2003/109/EC

Part C III

Content I. II. III. IV.

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

I. General Remarks Article 1 sets out the ‘subject matter’ of the Directive in a descriptive manner by stating in abstract formulations that it concerns the terms for conferral and withdrawal of long-term resident status, the rights pertaining to those holding the status and the conditions for relocation within the European Union. 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 amended by the Treaty of Amsterdam, which was the predecessor to today’s Article 79(2)(a) and (b) TFEU1 on the basis of which future amendments to the Directive will have to be adopted. At the time of its adoption in 2003, the legal basis for the Directive required the unanimous consent of the Member States in the Council after the consultation of the European Parliament,2 while future amendments will be subject to the ordinary legislative procedure that provides for a qualified majority vote in the Council and the consent of the European Parliament.3 It was adopted by the Council on 25 November 20034 and published in the Official Journal in early 2004. In accordance with the specific design of their opt-out provisions 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 by which they are not bound as a result,5 while Denmark was prohibited from joining the decision-making process from the beginning,6 since the Directive does not constitute a measure building upon the Schengen acquis. Rules governing the opt-out arrangements are described in the introduction.7 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 the interpretation of operative articles.8 Chapter I sets out general provisions, including key definitions (Article 2). Chapter II contains the most relevant rules of the Directive 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). Chapter IV lists the final provisions, such as the duration of the transposition period until 23 January 2006. 1

See Thym, Part C I, MN 11–12, 17–18. See 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 one year after the adoption of Directive 2003/109/EC at the end of 2004. 3 Cf. Article 15(3) TEU read in conjunction with Articles 79(2) and 294 TFEU. 4 See Council doc. 14492/03 of 25 November 2003. 5 See Recital 25. 6 See Recital 26. 7 See Hailbronner/Thym, Part A, MN 38–45. 8 On interpretative principles, see Hailbronner/Thym, Part A, MN 10–20. 2

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Empirical data collected by Eurostat shows that the practical relevance of the Directive varies greatly between Member States. At the end of 2013, there were around 7 million third-country nationals holding a long-term resident status under Directive 2003/109/EC living in the Member States.9 That amounts to roughly 30 % of all thirdcountry nationals residing legally in the EU.10 Noticeable variations in the number of long-term residents among the Member States (150 in Bulgaria, not more than 8000 in Germany, almost 2.2 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 Moreover, some Member States, such as Germany, often 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).

II. Background Prior to the entry into force of the Treaty of Amsterdam, the EU could not adopt binding secondary legislation on immigration and asylum. Instead, the former so-called ‘third pillar’ allowed for non-binding resolutions and international law-style conventions.12 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 Basis13 establishing a general framework for domestic long-term residence statuses without detailed prescriptions.14 Moreover, the Commission proposed a Convention on the Admission of Third-Country Nationals which included some rules on long-term residents and which was not agreed upon by the Council due to the imminent entry into force of the Treaty of Amsterdam.15 Although these informal arrangements never gained much practical relevance, they served as a starting point for negotiations once the Treaty of Amsterdam had established a more robust supranational Treaty base for legislation on migration matters. 7 In a parallel development, the Council of Europe adopted a recommendation that state parties to the organisation should provide for security of residence of long-term migrants,16 thereby reflecting a growing political consensus 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 treatment. In doing so, the Council of Europe built upon earlier conventions on the protection of foreigners agreed upon in its framework, such as the European Conven6

9 Cf. the dataset ‘migr_reslong’, available online at http://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=migr_reslong&lang=en [last accessed on 1 July 2015]. 10 Cf. the dataset ‘migr_resshare’, available online at http://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=migr_resshare&lang=en [last accessed on 1 July 2015]. 11 I.e. they grant nationality instead 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. 12 See Hailbronner/Thym, Part A, MN 2–3. 13 OJ 1996 80/2. 14 By way of example, the resolution foresaw a rather general qualification period of up to 10 years of legal residence; for further comments, see Peers et al., EU Immigration and Asylum Law Vol. 2, p. 289– 293; and Boelaert-Suominen, Directive 2003/109/EC, p. 117–120. 15 Cf. Article 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). 16 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 further comments, see Groenendijk, Citizenship and Integration, p. 431–432.

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tion on Establishment of 1955.17 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 (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.18 Shortly after the entry into force of the Treaty of Amsterdam, the European Council 8 at its meeting in Tampere in October 1999 agreed upon political guidance for the realisation of the incipient area of freedom, security and justice.19 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 better management of migration flows and the fight against illegal immigration with ‘fair treatment of third-country nationals who reside legally’ and a ‘more vigorous integration policy.’20 More specifically with regard to long-term residents, the European Council stated that their legal status ‘should be approximated to that of Member States’ nationals. A person, who has resided legally in a Member State for a period of time to be determined and who holds a long-term residence permit, should be granted in that Member State a set of uniform rights which are as near as possible to those enjoyed by EU citizens; e. g. the right to reside, receive education, and work as an employee or selfemployed person, as well as the principle of non-discrimination vis-a`-vis the citizens of the State of residence.’21 It is stated in the introduction that the significance of this declaration of intent should 9 not be overstated for a number of reasons,22 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.23 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 The Commission Proposal of March 2001 followed closely the original political 10 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).24 It had been influenced, among other things, by a comparative study on corresponding rules in different Member States 17 See Thym, Part C I, MN 59; and, for further comments, Groenendijk, ‘Long-Term Immigrants and the Council of Europe’, EJML 1 (1999), p. 275, 276–279. 18 See Thym, Part C I, MN 50–56. 19 Cf. Hailbronner/Thym, Part A, MN 8. 20 European Council, Presidency Conclusions of the Meeting on 15/16 October 1999 in Tampere, para 18. 21 Ibid., para 21. 22 See Thym, Part C I, MN 36. 23 On the significance of the migration-related articles of the Charter, see Thym, ibid., MN 33–35. 24 See COM(2001) 127, Explanatory Report, No. 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 Member States.’

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undertaken by the University of Nijmegen.25 The European Parliament,26 the Economic and Social Committee27 and the Commission of the Regions28 were consulted and sought some amendments that the Council was not bound to follow, however, in accordance with the institutional regime applicable at the time (see above MN 2). 11 The working group of the Council started considering the Commission Proposal in July 2001.29 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[d] the Council to adopt’30 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 2003.31 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.32 The final version of Directive 2003/109/EC was officially adopted by the Council on 25 November 2003 after the usual legal-linguistic revision.33 Specific issues relating to the drafting history which may have an impact on interpretation are discussed in the context of the article in question. 12 In accordance with Article 26, the Directive had to be transposed into domestic laws by 23 January 2006. As usual, several Member States failed to comply with the deadline and the Commission initiated infringement proceedings against several Member States some of which were repealed after the adoption of domestic laws.34 In 2007, the ECJ established that Spain, Luxembourg and Portugal had failed to implement correctly the Long-Term Residents Directive.35 A few years later, 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.36 13 During the original negotiations, it was decided to exclude beneficiaries of international protection (i. e. refugees and those with subsidiary protection) from the scope of Directive 2003/109/EC in order not to complicate an early agreement on the Long-Term 25

See Groenendijk/Guild, Converging Criteria. 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 Report of the Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs, EP doc. A5-0436/2001 of 30 November 2001. 27 See Economic and Social Committee, Opinion 1321/2001 of 17 October 2001 (OJ 2000 C 36/59). 28 See Committee of the Regions, Opinion 213/2001 of 27 September 2001 (OJ 2002 C 19/18). 29 The relevant Council documents can be located in the Register of Council Documents (available online at http://www.consilium.europa.eu/register/en/content/int/?typ=ADV; last accessed 1 July 2015) by entering the interinstitutional file ‘2001/0074(CNS)’. 30 Seville European Council of 21/22 June 2002, Presidency Conclusions, para 37. 31 See Council doc. 10214/03 of 10 June 2003. 32 More detailed information on the course negotiations can be found in Handoll, The Long-Term Residents Directive, p. 158–159; Hauschild, Einwanderungsrecht, p. 350–351; and Acosta, The LongTerm Residence Status, p. 84–87. 33 Note that adoption after May 2004 would have required the unanimous consent of seven more Member States after enlargement; see Groenendijk, Citizenship and Integration, p. 433. 34 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). 35 Cf. ECJ, Commission vs. Spain, C-59/07, EU:C:2007:683; ECJ, Commission vs. Luxembourg, C-34/07, EU:C:2007:738; and ECJ, Commission vs. Portugal, C-5/07, EU:C:2007:559. 36 See the Commission’s 2011 Report, COM(2011) 585. 26

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Residents Directive at a time when the asylum directives were still under discussion.37 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.38 Directive 2011/ 51/EU amending Council Directive 2003/109/EC to Extend its Scope to Beneficiaries of International Protection was finally adopted on 11 May 2011 after the Treaty of Lisbon had entailed the application of the ordinary legislative procedure.39 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.

IV. Purpose and Significance of the Long-Term Resident Status After its adoption, the contents of Directive 2003/109/EC was often assessed in the 14 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 8) and commentators concluded that the original objective had not been met,40 in particular in so far as equal treatment under Article 11 and free movement under Articles 14–23 were concerned.41 Although it is legitimate to assess the Directive in the light of political objectives set beforehand, it should be noted that Union citizenship and the status of third-country national are distinct categories from a legal perspective: the ‘fundamental status’ the Court considers Union citizenship to be destined to be does not embrace the constitutional rules governing the area of freedom, security and justice.42 Hence, EU institutions were not legally obliged to approximate the two statuses. The change of direction during negotiations in the Council where Member States deviated from the more generous Commission Proposal (see above MN 10–11) must be respected as the outcome of political decision-making.43 It is sometimes said that the Long-Term Residents Directive should be interpreted in 15 the light of the Tampere objective of approximation to Union citizenship, not least because Recital 2 reiterates the political conclusions of October 1999.44 However, closer inspection demonstrates that the European Council conclusions in Tampere cannot not guide the interpretation of Directive 2003/109/EC.45 At a textual level, Recital 2 simply echoes in a 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 about past events and does not imply, consequently, that the legislature maintained the 37

See Guild, European Identity, p. 224. See the Commission Proposal, COM(2007) 298; and Peers, ‘Legislative Update EU Immigration and Asylum Law 2010’, EJML 13 (2011), p. 201, 206–212. 39 OJ 2011 L 32/1. 40 By way of example, see Boelaert-Suominen, Directive 2003/109/EC, p. 1011–1052; and Peers, Implementing Equality?, p. 437–440. 41 See Groenendijk, Citizenship and Integration, p. 439–400; and Bribosia, Politiques d’inte ´gration, p. 68. 42 For further explanations, see Thym, Part C I, MN 28–36; and Thym, Constitutional Rationale, p. 718–725. 43 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 europa¨ischen Ausla¨nderrecht’, in: Dicke et al. (eds), Weltinnenrecht. Liber Amicorum Jost Delbru¨ck (Duncker & Humblot, 2005), p. 315, 319. 44 See Peers et al., EU Immigration and Asylum Law Vol. 2, p. 296; Groenendijk, Citizenship and Integration, p. 430, 434; and Peers, Implementing Equality?, p. 442–443. 45 Similarly, see Halleskov, The Long-Term Residents Directive, p. 188–189; Boeles et al., European Migration Law, p. 177–178; and Handoll, Directive 2003/109/EC, MN 36. 38

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idea during the legislative procedure. Rather, the Council consciously decided not to follow the original Commission Proposal (see above MN 10–11), thereby demonstrating that the 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 1 describes the subject matter in a decidedly general language highlighting the ‘terms’ (French: conditions; German: Bedingungen) of the long-term resident status. The invocation of human rights in Recital 3 confirms this conclusion, since the EU Charter maintains the principled distinction between the status of Union citizens and thirdcountry nationals.46 16 In its early case law on the Directive, the European Court of Justice concluded under 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.’47 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’48 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). What is more, the ECJ identified in another judgment the additional aim ‘to contribute to the effective attainment of an internal market’49, which seems to relate primarily, as a subsidiary objective, to residence in other Member States in accordance with Articles 14–23.50 This leaves us with the ‘integration’ of long-term residents in host societies as the principal objective of Directive 2003/109/EC. 17 It is described in the introduction that the meaning of the concept of ‘integration’ in EU immigration law remains ambiguous and that it is possible to distil two potentially opposing approaches towards the concept of migrant integration underlying EU immigration laws whose interaction can be conceptualised as a dichotomy between a rightsfocused standpoint and a broader social or cultural outlook. The first reading of integration concentrates on equal rights as an end in itself, while the second perspective focuses on social realities on the ground on questions such as knowledge of the local language.51 While it is undoubtedly legitimate to defend a specific viewpoint, 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.52 Rather, the meaning and implications of the integration objective requires further clarification. In the P & S case on language requirements and civic integration tests, the ECJ seems to have embraced deliberately the second approach for the purposes of Directive 2003/109/EC (see below Article 5 MN 18). 18 Shortly after the conclusions of the European Council in Tampere (see above MN 8), the Commission took up the idea of approximation to Union citizenship in a Commu46

See, again, Thym, Part C I, MN 33–36. ECJ, Commission vs. 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; and ECJ, P & S, C579/13, EU:C:2015:369, para 46. 48 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’, i. e. 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. 49 ECJ, Commission vs. Netherlands, C-508/10, EU:C:2012:243, para 66. 50 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] is ensured’ (ibid.). 51 See Thym, Part C I, MN 43–47. 52 That seems to be suggestion, however, by Acosta Arcarazo, The Long-Term Residence Status, p. 203– 226; ibid., Civic Citizenship Reintroduced?, p. 208–209; and Peers et al., EU Immigration and Asylum Law Vol. 2, p. 297. 47

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nication on a Community Immigration Policy endorsing, among other things, ‘a form of civic citizenship’ of long-term residents, although the proposal at closer inspection remained decidedly abstract and did not contain much substance.53 This Commission statement reflected a broader trend among a series of academic contributions reconceptualising the notion of ‘citizenship’ for migration purposes at a time when the traditional dichotomy between nationals with equal treatment and foreigners with less protection of the law seemed to disappear. A prominent group of authors propagated the emergence of a novel form of stakeholder citizenship where 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 communities.54 Against this background, academic observers portrayed both the adoption of the Long-Term Residents Directive 2003/109/EC55 and the emerging case law of the European Court of Human Rights56 as more specific expressions of a general drive towards residence-based conceptions of citizenship. In the years following the initial impetus of the Tampere European Council and the 19 2000 Commission Communication, the concept of ‘civic citizenship’ was not taken up at European level. Rather, a growing political consensus emerged among 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). 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’57 in its case law on Article 8 ECHR after 2006.58 What is more, many Member States which had previously not allowed for the extensive naturalisation of third-country nationals started changing their nationality laws in the late 19990s and early 2000s by extending or introducing national jus soli rules on the basis of which long-term residents could acquire nationality with full equal treatment and residence security.59 In the context of rules on Turkish workers, the ECJ similarly recognised that ‘the acquisition of the nationality of the host Member State represents, in principle, the most accomplished level of integration.’60 Against this background, the concept of civic citizenship as an alternative to naturalisation gradually lost its significance. It is explained in the introduction that EU immigration law endorses the concept of 20 legal status change construing the legal dimension of regular migrants’ biographies as a sequence of different legal statuses.61 From the perspective of the EU immigration 53 COM(2000) 757, p. 19, 22 referred to the Charter of Fundamental Rights, migrant integration and the option of naturalisation in decidedly general language. 54 See, among many, the (different) arguments put forward by Kostakopoulou, The Future Governance of Citizenship (CUP, 2008), ch. 6; Baubo¨ck, ‘Global Justice, Freedom of Movement and Democratic Citizenship’, European Journal of Sociology 50 (2009), p. 1–31; Shaw, ‘Citizenship of the Union: Towards a Post-National Membership?’, in: Collected Courses of the Academy of European Law, Vol. VI-1 (Kluwer, 1998), p. 237, 255–277; and Rubio Marin/O’Connell, ‘The European Convention and the Relative Rights of Resident Aliens’, ELJ 5 (1999), p. 4, 7–9. 55 See Acosta 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. 56 See the references in Thym, Residence as de facto Citizenship?, p. 131–138. 57 Standard formulation for the application of the principle of proportionality first established in ¨ ner v. the Netherlands, para 58. ECtHR, judgment of 18 October 2006 (GC), No. 46410/99, U 58 For further comments, see Thym, Residence as de facto Citizenship?, p. 138–143. 59 See Joppke, Citizenship and Immigration (Polity Press, 2010), ch. 4; and Hansen, ‘A European Citizenship or a Europe of Citizens? Third-country nationals in the EU’, Journal of Ethnic and Migration Studies 24 (1998), p. 751–769. 60 ECJ, Demirci u. a., C-171/13, EU:C:2015:8, para 54. 61 See Thym, Part C I, MN 7.

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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.62 Against this background, more lenient rules on naturalisation can be presented as an alternative to achieve the objectives pursued by the Long-Term Residents Directive. The EU cannot prescribe this outcome due to the lack of competence,63 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.’64 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 do not want to pursue the avenue for various reasons.65 It means, rather, that long-term resident status need not be the final legal status in regular migrants’ biographies, even though the practical relevance of the Directive varies between Member States reflecting the different outline of their nationality laws.66 After naturalisation, former migrants acquire voting rights with which are not endowed under Directive 2003/109/EC (Article 12 MN 37).

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 first 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 first 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 members’ 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(5); (f) ‘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 persons as refugees or as persons who otherwise need international protection and the content of the protection granted(6); 62

After naturalisation, they obtain free movement rights in other Member States as EU citizens. See Thym, Part C I, MN 14. 64 European Council, Presidency Conclusions of the Meeting on 15/16 October 1999 in Tampere, para 21; see also Common Basic Principles (CBP) No. 6 for immigrant integration policy, Council doc. 14615/04 of 19 November 2004. 65 Moreover, there will be some who qualify for long-term residence status under Directive 2003/109/ EC first and can apply for naturalisation on the basis of domestic law later. 66 See above MN 5; Groenendijk, Citizenship and Integration, p. 429–430; and Acosta, The Long-Term Residence Status, p. 79. (5) OJ L 251, 3.10.2003, p. 12. (6) OJ L 304, 30.9.2004, p. 12. 63

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(g) ‘long-term resident’s EC residence permit’ means a residence permit issued by the Member State concerned upon the acquisition of long-term resident status. Content I. General Remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2

I. General Remarks Article 2 defines a number of key terms used in Directive 2003/109/EC. These 1 statutory definitions have to be taken into account as legally binding characterisations when interpreting operative articles throughout the Directive. It should be noted that the definitions are specific to Directive 2003/109/EC. Other immigration and asylum directives or regulation can employ a different terminology.

II. Definitions From a literal perspective, the term ‘third-country national’ could be read to embrace only those who have the nationality of a third state. For that reason, part A makes clear that stateless persons are also covered by the Directive.67 What is more, the definition ex negativo referring to any person ‘who is not a citizen of the Union’ implies that EU citizens with dual nationality (e. g. a Romanian national who also has a Moldovan passport) are not covered by the Directive, while it is shown elsewhere that family members of Union citizens holding the nationality of a third state (e. g. the Russian spouse of a Swedish national) can be covered by Directive 2003/109/EC (see below Article 3 MN 8). Part B implies that those holding a domestic long-term residence status in accordance with national immigration laws (see below Article 13) are not covered by the term ‘long-term resident’ whenever the latter is used in the Directive. As a result, they do not benefit from the equal treatment guarantees and free movement rights provided by Directive 2003/109/EC for those holding the EU status. The explanation of the terms ‘first’ and ‘second’ Member State in parts C and D refers to scenarios of intra-European free movement in accordance with the rules set out in Chapter III of the Directive. Any application of these rules logically requires the prior acquisition of long-term resident status in a ‘first’ Member State on the basis of which foreigners can relocate to one or more ‘second’ Member States in accordance with Articles 14–22 Directive 2003/109/EC. Acquisition of long-term residence status in a second Member State after five years of legal residence there is governed by Article 23. Part E specifies that the term ‘family members’ is used in a specific manner throughout the Directive, which relates primarily to residence in a second Member State on the basis of Article 16. Throughout the Directive, the term family member should be understood in accordance with the Family Reunion Directive 2003/86/EC. Access and residence rights of family members in a first Member State, where a third-country national obtained longterm resident status, are discussed elsewhere (see below Article 3 MN 7). Part F was amended by Directive 2011/51/EU extending the scope of Directive 2003/ 109/EC to beneficiaries of international protection (see above Article 1 MN 13). While the original version had referred to ‘refugees’, the present definition in Article 2 Part F 67 The second sentence of Article 67(2) TFEU clarifies that the legal basis for the Directive in Article 79(2) TFEU similarly covers stateless persons.

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invokes the concept of ‘international protection’ covering both refugee status and subsidiary protection in accordance with the Asylum Qualification Directive 2011/95/ EU. As a result, foreigners holding a complementary humanitarian status in accordance with national immigration or asylum laws68 are not covered by Directive 2003/109/EC (see below Article 3 MN 13). 7 Rules concerning the format and other aspects of the ‘long-term resident’s EC residence permit’ can be found in Article 8. Again, those with a domestic long-term resident status are not covered by the definition (see above MN 3).

Article 3 Scope 1. This Directive applies to third-country nationals residing legally in the territory of a Member State. 2. This Directive does not apply to third-country nationals who: (a) reside in order to pursue studies or vocational training; (b) are authorised to reside in a Member State on the basis of temporary protection or have applied for authorisation to reside on that basis and are awaiting a decision on their status; (c) are authorised to reside in a Member State on the basis of a form of protection other than international protection or have applied for authorisation to reside on that basis and are awaiting a decision on their status; (d) have applied for international protection and whose application has not yet given rise to a final decision; (e) reside solely on temporary grounds such as au pair or seasonal worker, or as workers posted by a service provider for the purposes of cross-border provision of services, or as cross-border providers of services or in cases where their residence permit has been formally limited; (f) enjoy a legal status governed by the Vienna Convention on Diplomatic Relations of 1961, the Vienna Convention on Consular Relations of 1963, the Convention of 1969 on Special Missions or the Vienna Convention on the Representation of States in their Relations with International Organisations of a Universal Character of 1975. 3. This Directive shall apply 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; (b) bilateral agreements already concluded between a Member State and a third country before the date of entry into force of this Directive;  the European Convention on Establishment of 13 December 1955, the European Social Charter of 18 October 1961, the amended European Social Charter of 3 May 1987, the European Convention on the Legal Status of Migrant Workers of 24 November 1977, paragraph 11 of the Schedule to the Convention Relating to the Status of Refugees of 28 July 1951, as amended by the Protocol signed in New York on 31 January 1967, and the European Agreement on Transfer of Responsibility for Refugees of 16 October 1980.

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Content I. General Remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Legal Residence (Article 3(1)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Exclusion Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Studies and Vocational Training (Article 3(2)(a)) . . . . . . . . . . . . . . . . . . . . . . . . 2. Temporary and Complementary Protection, Asylum Seekers (Article 3(2)(b)–(d)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Temporary Grounds (Article 3(2)(e)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Diplomatic and Consular Agents (Article 3(2)(f)) . . . . . . . . . . . . . . . . . . . . . . . . IV. More Favourable International Agreements (Article 3(4)) . . . . . . . . . . . . . . . . .

1 2 9 10 12 15 21 22

I. General Remarks Article 3 constitutes a crucial bottleneck for the acquisition of long-term resident 1 status which, generally speaking, can be obtained after previous periods of legal residence in a Member State. This entails that long-term resident status cannot be obtained from day one after admission (like the famous US greencard), since it presupposes, in accordance with Article 4, a five-year period of legal residence. It is explained elsewhere that this gradual approach towards immigration law corresponds to a system of legal status change construing the legal dimension of migrants’ biographies as a sequence of different legal statuses.69 Against this background, Article 3 specifies which situations count as ‘legal residence’ for the purpose of acquiring long-term resident status. It combines of a general rule in Article 3(1) with exceptions in Article 3(2) and concludes with an opening clause in Article 3(3) for more favourable provisions of international agreements.

II. Legal Residence (Article 3(1)) Directive 2003/109/EC does not define the term ‘legal residence.’ Neither Article 2 2 nor Article 3(1) specify what counts as ‘legal residence.’ Instead, Article 1(a) describes the subject matter of the Directive as pertaining to the conferral or withdrawal of longterm resident status ‘by a Member State in relation to third-country nationals legally residing territory.’ The ECJ found, on the basis of this depiction, that ‘[t]hus Member States may, when exercising their competences in immigration matters, define the conditions of legal residence.’70 This seems to imply that the (il)legality of residence must be defined primarily under recourse to the provisions of national immigration laws.71 This solution is convincing insofar as various residence statuses are not harmonised at EU level (see below MN 3–4), while national immigration law has to be interpreted in line with EU directives whenever the latter regulate specific questions (see below MN 5–8). Illegal residence constitutes the counterpart to the notion of ‘legal residence.’ 3 Although the definition of ‘illegal residence’ in Article 3 Return Directive 2008/115/EC cannot be automatically applied to the Long-Term Residents Directive 2003/109/EC, it captures the meaning of the notion of illegal residence when it defines the latter to relate to the ‘the presence on the territory of a Member State of a third-country national who does not fulfil, or no longer fulfils the conditions of entry as set out in Article 5 of the Schengen Borders Code or other conditions for entry, stay or residence in that 69

See Article 1 MN 20; and Thym, Part C I, MN 7. ECJ, Singh, C-502/10, EU:C:2012:3076, para 39. 71 See also the Commission’s report on application, COM(2011) 585, p. 2. 70

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Member State.’72 This recourse to national immigration laws and/or EU legislation for the definition of (il)legal residence corresponds to the criteria under the Long-Term Residents Directive (see above MN 2). Borderline scenarios in between legal and illegal residence have to be decided by scrutinising the more specific legal rules at national and/or EU level (see Lutz, Return Directive 2008/115/EC, Article 3 MN 7–8). 4 The deference to more specific statutory rules for the definition of (il)legal residence implies that the regularisation of illegal stay can lead to the acquisition of long-term resident status under Directive 2003/109/EC if the conditions put forward in the Directive are met.73 In line with the general principle of national procedural autonomy,74 instances of unclear proof or documentation concerning the situation of a migrant have to be resolved in accordance with the administrative or judicial procedure applicable.75 5 Directive 2003/109/EC builds upon national and/or EU rules defining legal residence as a precondition for acquiring long-term resident status and does not harmonise these rules.76 This implies that it has to be decided on the basis of the domestic and/or EU rules in question whether a valid residence permit is required.77 It is well known that Turkish nationals residing on the basis of the Association Council Decision No. 1/80 do not require a certificate to demonstrate the legality of their stay.78 Thus, they are covered by Article 3(1) Directive 2003/109/EC for as long as their residence can be qualified as legal in accordance with the Association Council Decision.79 Whether or not they apply for long-term resident status besides the association status, is their decision (see below Article 7 MN 2). Once long-term resident status has been obtained, it can be withdrawn or lost in accordance with Article 9 Directive 2003/109/EC only, irrespective of whether residence is still legal in accordance with the association law. 6 While refugees and beneficiaries of subsidiary protection had originally not been covered by Directive 2003/109/EC, its scope was broadened by Directive 2011/51/EU (see above Article 1 MN 13). Refugees and beneficiaries of subsidiary protection can acquire long-term resident status for as long as their residence can be qualified as legal. This entails that revocation of international protection in accordance with Articles 14 or 19 Asylum Qualification Directive 2011/95/EU hinders the acquisition of long-term resident status, as confirmed by Article 4(1a) Directive 2003/109/EC (see below Article 4 MN 8–9), while at least half of the residence period as a asylum seeker shall be taken into account when assessing the five-year qualification period (see below Article 4 MN 13). After the acquisition of long-term resident status, however, it can be with72

Article 3(2) Return Directive 2008/115/EC. Similarly, see Acosta, The Long-Term Residence Status, p. 89–99; Hailbronner, Drittstaatsangeho¨rige, p. 163; Boeles et al., European Migration Law, p. 181; and Boelaert-Suominen, Directive 2003/109/EC, p. 1022. 74 See Hailbronner/Thym, Part A, MN 35–36. 75 If Peers, Implementing Equality?, p. 444–445 contends that ‘purely technical problems documenting their authority to reside’ may pre-empt the qualification of residence as unauthorised (illegal), he refers to a genuine problem, which, however, has to be resolved on the basis of the procedural standards applicable instead of qualifying such scenarios as legal residence ipso jure, as Peers, ibid., and Peers et al., EU Immigration and Asylum Law Vol. 2, p. 301 seems to suggest. 76 See above MN 2 for the position of the ECJ; Acosta, The Long-Term Residence Status, p. 110–112 and Boelaert-Suominen, Directive 2003/109/EC, p. 1023 seem to suggest that the criteria for qualifying previous periods of residence as (il)legal can be altered under recourse to Directive 2003/109/EC without specifying, however, which substantive criteria would be applicable. 77 See Wiesbrock, Legal Migration, p. 372. 78 Cf. ECJ, Sevince, C-192/89, EU:C:1990:322, paras 29–30. 79 See Wiesbrock, Legal Migration, p. 382; and Peers, Implementing Equality?, p. 449; this reference to (il)legality under the association law concerns the verification of previous periods of legal residence when Turkish nationals apply for long-term resident status under Directive 2003/109/EC. 73

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drawn or lost only in accordance with Article 9 Directive 2003/109/EC stipulating that later revocation does not end the status unless Member States provide for an exception to the contrary in domestic law (see Article 9 MN 12). It seems that the denial of residence permits to beneficiaries of international protection under the Asylum Qualification Directive without a parallel revocation of the protection status does not hinder the application of Directive 2003/109/EC.80 By contrast, complementary humanitarian protection under national immigration laws are covered by an explicit exception in Article 3(2)(c) (see below MN 13). Third-country national family members residing legally are covered by Directive 7 2003/109/EC unless one of the exceptions discussed below applies. Whether they are residing legally has to be determined on the basis of the Family Reunion Directive 2003/86/EC and/or domestic immigration laws, which can provide for legal residence under more favourable conditions than the said directive.81 The more restrictive definition in Article 2(e) applies primarily to residence in a second Member State in accordance with Article 16 (see above Article 2 MN 5). It is important to understand that Directive 2003/109/EC covers the acquisition of long-term resident status only, while the initial entry and stay of family members of a long-term resident are not covered by Directive 2003/109/EC. Family members of a long-term resident can enter Member States in accordance with the Family Reunion Directive and/or domestic immigration laws.82 The Commission had originally proposed to exclude third-country national family 8 members of Union citizens from the scope of the Long-Term Residents Directive, at least in the case of Union citizen living abroad.83 The Council did not follow this proposal and third-country national family members of Union citizens are covered, therefore, by Directive 2003/109/EC: they can apply for long-term resident status. When they do so, it has to be assessed on the basis of domestic or EU rules in question whether their status is legal – a question that will often depend on the rather complex rules of the Citizenship Directive 2004/38/EC as well as ECJ case law on the Treaty provisions on the free movement of persons.84 An application under Directive 2003/ 109/EC may be beneficial for third-country national family members of immobile Union citizens living in their home state,85 while family members of Union citizens living abroad will usually prefer permanent resident status under Article 16 Citizenship Directive 2004/38/EC.86 Neither status is exclusive, i. e. both can be obtained in parallel. It should be remembered, however, that family members with dual nationality who are also Union citizens are not covered by the Long-Term Residents Directive (see above Article 2 MN 2).

80 On the ambiguous interaction between Articles 21 and 24 Asylum Qualification Directive, see Battjes, Directive 2011/95/EU, Article 21 MN 12–13; and ECJ, T., C-373/13, EU:C:2015:413, paras 95–98. 81 See Article 3(5) Family Reunion Directive 2003/86/EC; and Peers, Implementing Equality?, p. 445. 82 Long-term residents meet the requirement of Article 3(1) Family Reunion Directive to be a sponsor of family reunion as a matter of principle. 83 See Article 3(3) of the Commission Proposal, COM(2001) 127. 84 For an overview of the complex legal picture, see Thym, ‘Family as Link’, in: Verschueren (ed), Where do I belong? (Intersentia, 2016), forthcoming. 85 See Boeles et al., European Migration Law, p. 181; Peers et al., EU Immigration and Asylum Law Vol. 2, p. 299; Hailbronner, Ausla¨nderrecht, § 9a MN 1; and Boelaert-Suominen, Directive 2003/109/EC, p. 1022. 86 See Groenendijk, Citizenship and Integration, p. 441; and Peers, Implementing Equality?, p. 448; it should be noted that neither long-term resident status under Directive 2003/109/EC nor permanent residence under Directive 2004/38/EC are acquired automatically, since they presuppose an application.

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III. Exclusion Clauses 9

The general concept of ‘legal residence’ is complemented by an exhaustive list of six categories87 that are excluded from the scope of the Directive.

1. Studies and Vocational Training (Article 3(2)(a)) Third-country nationals residing in order to pursue studies or vocational training are excluded from the personal scope. Again, it has to be ascertained on the basis of national and/or EU law in question (see above MN 2) whether this condition is met. More specifically, those covered by the Students Directive 2004/114/EC or more generous domestic rules cannot apply for long-term resident status after five years of studies (with the potential exception of Turkish students88). It should be noted that students obtaining a different residence permit, such as for work after the end of their studies or as a family member after marriage, are no longer covered by the exceptions. Article 4(2)(2) specifies that in these cases scenarios heart of the period of residence for study purposes or vocational training may be taken retroactively. 11 The same applies to doctoral students, since the Commission Proposal to exclude them from the exception was rejected by the Council,89 although doctoral students in employment may occasionally be in possession of a residence permit for purposes other than study, such as work or research. In the latter case, Article 3(2)(a) Directive 2003/ 109/EC does not apply. 10

2. Temporary and Complementary Protection, Asylum Seekers (Article 3(2)(b)–(d)) Part B excludes those residing on the basis of temporary protection or during an assessment of their replication for the status are excluded from long-term resident status. Given that Directive 2001/55/EC was already in force when Directive 2003/109/ EC was adopted, Article 3(2)(b) should be interpreted to refer to the Temporary Protection Directive. 13 Part C was amended by Directive 2011/51/EU extending the scope of Directive 2003/ 109/EC to beneficiaries of international protection (see above Article 1 MN 13). It now refers to complementary protection statuses in accordance with national immigration laws which cover various instances of humanitarian protection below the level of refugee status of subsidiary protection in accordance with the Asylum Qualification Directive 2011/95/EU. These complementary protection statuses have not been harmonised at EU level so far,90 such as residence for individualised health or security concerns below the threshold of subsidiary protection.91 Again, beneficiaries of complementary protection can qualify for long-term residence status, once they have obtained a residence permit for other purposes, such as work or family reunion. 12

87 Handoll, Directive 2003/109/EC, MN 12 and Peers, Implementing Equality?, p. 446 concur that the list of the exclusion clauses is exhaustive. 88 Again, the status of Turkish nationals may be different (see above MN 5), since Turkish students working besides their studies may qualify as workers in accordance with Association Council Decision No. 1/80 and thus be exempted from the exception in Article 3(2)(a) Directive 2003/109/EC as well; cf. ECJ, Payir, C-294/06, EU:C:2008:36, paras 34–48. 89 Cf. Article 3(2)(d) of the Commission Proposal, COM(2001) 127. 90 See Hailbronner/Thym, Part D I, MN 20, 39. 91 For a comparative survey, see Schieber, Komplementa ¨ rer Schutz (Nomos, 2013), ch 3.

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Part D clarifies that asylum seekers whose application for international protection 14 has not yet been decided are not covered by Directive 2003/109/EC. This exclusion seems to be declaratory in nature, because Article 9(1) Asylum Procedure Directive 2013/32/EU confirms that residence pending the outcome of the procedure cannot be generally considered legal and does not give rise, in particular, to an entitlement to a residence permit.92 If their application is approved, their residence is considered legal (see above MN 6).

3. Temporary Grounds (Article 3(2)(e)) Article 3(2)(e) is formulated ambiguously and holds the potential to exclude a broad 15 category of third-country nationals from the scope of the Directive. The Commission had originally proposed a more clearly defined exception93 that was later amended by the Council, without any substantive explanation,94 to include two vaguely formulated exceptions for residence ‘solely on temporary grounds’ and ‘in cases where [a] residence permit has been formally limited.’ While it is not uncommon to exclude temporary economic agents, such as seasonal workers, from the prospect of status renewal and long-term residence,95 the vaguely formulated exceptions require closer inspection in order not to jeopardise the practical relevance of Directive 2003/109/EC. An important interpretative starting point concerns the number of scenarios covered 16 by Article 3(2)(e) whose English language version could be read to include one general rule (residence ‘solely on temporary grounds’) the meaning of which is specified by a number of exemplifications connected by the conjunction ‘or.’ If that were correct, the notion ‘cases where [a] residence permit has been formally limited’ would be a subcategory of the general rule exempting those residing solely on temporary grounds from the scope of the Directive. Other language versions, including French, point to a different reading combining a first exception that several examples (residence ‘solely on temporary grounds’) with an autonomous second exception (cases of formal limitation).96 In the Singh judgment, the ECJ, whose internal discussions are in French, found that Article 3(2)(e) covers two autonomous exceptions, one for residence ‘solely on temporary grounds’ and one for ‘cases where [a] residence permit has been formally limited.’97 Given that both exceptions are vaguely formulated, the ECJ had recourse to the 17 objective of Directive 2003/109/EC to specify the meaning of Article 3(2)(e).98 More specifically, the Court activated the integration objective (see above Article 1 MN 14– 17) in order to specify the meaning of the exceptions. It concluded that the five-year 92 See Hailbronner/Thym, Part D I, MN 39; and Vedsted-Hansen, Asylum Procedure Directive 2013/ 32/EU, Article 9 MN 2–4. 93 See Article 3(2)(d) of the Commission Proposal, COM(2001) 127. 94 The new formulation was first put forward by Council doc. 9025/03 of 6 May 2003, p. 4, apparently on the initiative of the Belgian delegation; see Acosta, The Long-Term Residence Status, p. 100; and Halleskov, The Long-Term Residents Directive, p. 184–185. 95 Cf. Mode IV GATS; Skordas, Immigration and the Market, p. 216–217; and Boeles et al., European Migration Law, p. 179. 96 The French language version employs the term ‘en tant que’ to specify the examples, while the second scenario (cases of formal limitation) are introduced by the linguistically more autonomous formulation ‘ou lorsque.’ 97 See ECJ, Singh, C-502/10, EU:C:2012:3076, paras 30–38, which are better understood if one takes note of the slightly different French language version. 98 Although the second question was concerned with the second subcategory of Article 3(2)(e), i. e. cases of formal limitation, the argument by the ECJ, ibid., paras 44–50 concerns the interpretation of Article 3(2) more broadly and refers explicitly, among others, to situations of temporary residence, i. e. the first subcategory.

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period of legal residence is meant to show ‘that the person concerned has put down roots in the country’99 and that, therefore, the Directive excludes from its scope ‘residence of third-country nationals which, whilst lawful and of a possibly continuous nature, does not prima facie reflect any intention on the part of such nationals to settle on a long-term basis.’100 In other words, the identification of residence of temporary or limited character does not follow formal criteria, such as the non-renewability of residence permits. People whose residence permit can be renewed may still be excluded from the Directive’s scope in the light of the substantive criteria put forward by the Court.101 Instead, we have to assess whether lawful and possibly continuous residence is (not) meant to allow the migrant to put down roots and to settle on a long-term basis. 18 The examples put forward in Article 3(2)(e) to specify the meaning of residence ‘solely on temporary grounds’ illustrate that the assessment required by the Court concerns primarily the purpose and nature of the residence permit in question and does not necessarily follow the subjective intention of the migrant.102 Au pairs, seasonal workers, posted workers or self-employed cross-border service providers undertake activities that are normally limited in time and are not meant to bring about, from the perspective of the legislature, the prospect of permanent settlement. Again, the meaning of these terms follows national immigration laws and/or EU legislation applicable to these categories of third-country nationals, including the Seasonal Workers Directive 2014/36/EU or Directive 96/71/EC concerning the Posting of Workers in the Framework of the Provision of Services.103 Third-country nationals covered by these rules, are exempted from the personal scope of the Long-Term Residents Directive, although they may be included at a later point if they receive a residence permit for other purposes, such as family reunion. 19 It follows from the introductory formulation ‘such as’ that the examples mentioned in the Directive are illustrative: Article 3(2)(e) may cover residence permits for other purposes if the criteria put forward by the Court are met. More specifically, intercorporate transferees residing on the basis of the ICT Directive 2014/66/EU are covered by the exception104 in the same vein as those holding a ‘Schengen visa’ for stays of up to 3 months.105 The same conclusion can be reached for other national residence permits which domestic courts would have to assess in the light of the ECJ’s criteria (see above MN 17). Given that these criteria are qualitative in nature, there will often be arguments both in favour and against the qualification as temporary residence and it remains the responsibility of domestic courts to assess individual situations autonomously.106 20 The second subcategory covered by Article 3(2)(e) similarly requires an assessment in the light of the ECJ’s criteria. This entails that the notion ‘cases where [a] residence permit has been formally limited’ does not apply automatically to all migrants whose 99

ECJ, ibid., para 46. ECJ, ibid., para 47. 101 This qualitative assessment on the side of the Court, implicitly rejects the argument by Peers, Implementing Equality?, p. 449 that only instances of non-renewability should be covered by the exception in Article 3(2)(e). 102 The reference by the ECJ, ibid., para 47 to the ‘intention on the part of [the migrant]’ could be read that seasonal workers without a statutory option of renewal who subjectively would prefer to remain in the host country after the expiration of their residence permit could not be covered by Article 3(2)(e) on the basis of the subjective intention. 103 OJ 1997 L 18/1. 104 See Loerges, Directive 2014/66/EU, Article 12 MN 1; and Skordas, Immigration and the Market, p. 216–217. 105 This corresponds to the explanatory memorandum of the original Commission Proposal according to Council doc. 10312/01 of 12 July 2001, p. 12. 106 This was the final answer given by ECJ, Singh, C-502/10, EU:C:2012:3076, paras 52–56. 100

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residence permit has been subject to a formal limitation.107 Rather, we need to assess on a case-by-case basis whether the limitation is meant (not) to allow the migrant to put down roots and to settle on a long-term basis (see above MN 17). Doing so, regularly necessitates an analysis of the range of factors to be assessed by national courts. The fact that an exception concerns a specific group, such as athletes, religious leaders or artists,108 is not in itself an indication that the exception should apply,109 while the potential of successive renewals beyond a five-year period is a ‘strong indication’ to the contrary.110

4. Diplomatic and Consular Agents (Article 3(2)(f)) Part F finally excludes third-country nationals with a diplomatic or consular legal 21 status from the scope of the Directive. The international legal instruments mentioned indicate the legal basis on which the statuses rest. To exclude diplomatic and consular agents from the Directive convinces, not least since Member States do not control their access, since diplomatic and consular agents are appointed by the host state and must normally be granted access in accordance with the international documents mentioned.111

IV. More Favourable International Agreements (Article 3(4)) Article 3(3) clarifies that the Directive applies without prejudice to more favourable provisions in certain international agreements. This means that third-country nationals can obtain more rights on the basis of these agreements.112 If their residence can be qualified as legal on the basis of these agreements, like in the case of Turkish nationals (see above MN 5), these periods count towards the acquisition of long-term resident status. Part A covers only agreements concluded between the EU (formerly the European Community or, before 1992, the European Economic Community) and third states with or without the participation of the Member States in so-called mixed agreements. The most relevant example is the Association Agreement with Turkey.113 The exception is dynamic, i. e. it also applies to agreements concluded after 2003. Part B contains a static exception for bilateral agreements concluded by the Member States before 23 January 2014 when the Directive entered into force in accordance with Article 27. For new Member States exceeding to the EU after that date, the provision should be read to cover agreements concluded before the day of accession. After that date, Member States lost the authority to conclude international agreements affecting the operative provisions of the Long-Term Residents Directive.114 Part C, which was amended by Directive 2011/51/EU (see above Article 1 MN 13), reaffirms that rights under a number of multilateral conventions agreed upon in framework of the Council of Europe are not affected by the Directive, which has little 107 The Directive does not specify what scenarios of formal limitation it refers to; in particular, it does not indicate that formal limitations should concern the length of residence. 108 Several Member States have excluded these rules from the scope of the Directive, see the Commission’s report on application, COM(2011) 585, p. 2. 109 See ECJ, Singh, C-502/10, EU:C:2012:3076, para 53. 110 See ECJ, ibid., para 54. 111 See Boeles et al., European Migration Law, p. 180. 112 See also Hailbronner/Thym, Part A, MN 28–33. 113 See Thym, Part C I, MN 58; for other agreements, see Boelaert-Suominen, Directive 2003/109/EC, p. 1037–1041. 114 See Article 3(2) TFEU; and Boelaert-Suominen, Directive 2003/109/EC, p. 1035–1036.

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relevance in practice, since the conventions mostly applied to nationals of state parties only (i. e. third-country nationals whose home state had not acceded to the Convention could not invoke its provisions) most of which have acceded to the EU in the meantime.115 Other multilateral conventions continue to apply in accordance with Article 351 TFEU.116

CHAPTER II LONG-TERM RESIDENT STATUS IN A MEMBER STATE Article 4 Duration of residence 1. Member States shall grant long-term resident status to third-country nationals who have resided legally and continuously within its territory for five years immediately prior to the submission of the relevant application. 1a. Member States shall not grant long-term resident status on the basis of international protection in the event of the revocation of, ending of or refusal to renew international protection as laid down in Articles 14(3) and 19(3) of Directive 2004/83/EC. 2. Periods of residence for the reasons referred to in Article 3(2)(e) and (f) shall not be taken into account for the purposes of calculating the period referred to in paragraph 1. Regarding the cases covered in Article 3(2)(a), where the third-country national concerned has acquired a title of residence which will enable him/her to be granted long-term resident status, only half of the periods of residence for study purposes or vocational training may be taken into account in the calculation of the period referred to in paragraph 1. Regarding persons to whom international protection has been granted, at least half of the period between the date of the lodging of the application for international protection on the basis of which that international protection was granted and the date of the grant of the residence permit referred to in Article 24 of Directive 2004/ 83/EC, or the whole of that period if it exceeds 18 months, shall be taken into account in the calculation of the period referred to in paragraph 1. 3. Periods of absence from the territory of the Member State concerned shall not interrupt the period referred to in paragraph 1 and shall be taken into account for its calculation where they are shorter than six consecutive months and do not exceed in total 10 months within the period referred to in paragraph 1. In cases of specific or exceptional reasons of a temporary nature and in accordance with their national law, Member States may accept that a longer period of absence than that which is referred to in the first subparagraph shall not interrupt the period referred to in paragraph 1. In such cases Member States shall not take into account the relevant period of absence in the calculation of the period referred to in paragraph 1. By way of derogation from the second subparagraph, Member States may take into account in the calculation of the total period referred to in paragraph 1 periods of absence relating to secondment for employment purposes, including the provision of cross-border services. 115 116

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Content I. General Remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Mandatory Five-Year-Period (Article 4(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 III. Calculation of the Residence Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1. Loss of International Protection (Article 4(1a)) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 2. Specific Rules for Certain Residence Permits (Article 4(2)) . . . . . . . . . . . . . 10 3. Periods of Absence (Article 4(3)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

I. General Remarks Article 4 lays down a five-year period of legal residence after which long-term 1 resident status can be obtained if the conditions set out in other articles of the Directive are met. The basic five-year rule in Article 4(1) is complemented by a number of specifications concerning the calculation of the five-year period concerning different categories residence permits in Article 4(1a), (2) and with regard to periods of absence in Article 4(3).

II. Mandatory Five-Year-Period (Article 4(1)) According to Recital 6, the five-year period shall be the ‘main criterion’ for acquiring 2 the status of long-term resident, since it is assumed to signal that ‘the person has put down roots in the country’, thereby substantiating the objective of Directive 2003/109/ EC of promoting the integration of long-term residents into host societies (see above Article 1 MN 14–17). This five-year period reflects earlier practice of the Member States117 as well as rules in international instruments of the International Labour Organisation and the Council of Europe.118 It is a mandatory prescription and Member State cannot establish shorter qualification periods in their national immigration laws for the acquisition of EU long-term resident status,119 although they are free to establish a more generous domestic regime in accordance with Article 13 of the Directive. The meaning of the term ‘legal residence’ follows corresponding rules at domestic 3 and/or European level in accordance with which domestic authorities or courts have to assess whether periods of residence count towards the five-year period (see above Article 3 MN 1–8). Whenever migrants change their residence status, periods of legal residence on the basis of different statuses can be accumulated for calculating the fiveyear period as long as the different statuses considered individually qualify for acquiring long-term resident status. For that reason, periods of legal residence on the basis of residence permits excluded from the scope of the Directive in accordance with Article 3(2) do not count towards the five-year period (see above Article 3 MN 9–20). Whenever a third-country national ‘upgrades’ her status by obtaining a residence permit covered by the Directive, it has to be assessed on the basis of Article 4(1), (1a) whether previous periods of residence on the basis of permits excluded from the scope of the Directive can exceptionally be taken account in the calculation of the five-year period (see below MN 10–14). It is well known that provisions of secondary legislation that are precise and 4 unconditional can be applied directly and it seems that these criteria are met in the case of Article 4(1) Directive 2003/109/EC notwithstanding difficulties in assessing 117

See Groenendijk/Guild, Converging Criteria, p. 42. See Halleskov, The Long-Term Residents Directive, p. 185. 119 See ECJ, Tahir, C-469/13, EU:C:2014:2094, paras 26–37. 118

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whether the conditions for lawful residence are met in specific scenarios.120 Direct applicability of a Directive entails, in line with settled ECJ case law, that individuals can directly invoke the provision before domestic courts or authorities which are obliged to apply the EU legislation in question to the case at hand. By contrast, direct applicability should not be confused with the need for a residence permit for acquiring long-term resident status. The latter is not obtained automatically, but requires an application which domestic authorities are bound to approve whenever the conditions are met (see below Article 7 MN 13–14). 5 During the legislative process, the Council added for sake of clarification that the fiveyear period relates to the time ‘immediately prior to submission of the relevant application.’121 This entails that previous periods of legal residence are irrelevant for the purposes of Article 4(1) even if they were longer than five years given that periods of absence going beyond Article 4(3) interrupt the calculation of the five-year period.122 Since the five-year requirement is mandatory (see above MN 2), Member States cannot decide to grant the status nevertheless. It should be noted that the five-year period concerns, according to the unequivocal wording, residence in one Member State: two three-year periods of legal residence in two different Member States are insufficient. An exception exists for holders of an EU Blue Card who may accumulate periods of residence in different Member States if they relocate on the basis of the Blue Card Directive and have lived in the last Member State for at least two years prior to the application.123 6 Since the legality of the residence status has to be assessed on the basis of national immigration laws and/or EU legislation applicable (see above Article 3 MN 2), the fiveyear period under Article 4(1) may include periods of legal residence before the entry into force of Directive 2003/109/EC if the residence status a foreigner held before that meets the conditions for legal residence in Article 3(1). The same applies to periods of legal residence before the date of accession whenever new countries join the EU.124

III. Calculation of the Residence Period 7

As a matter of principle, the mandatory five-year period of legal residence for acquiring long-term resident status concerns uninterrupted residence in accordance with pertinent domestic and/or European rules (see above MN 1–6). While Article 3 explains which legal residence statuses may be taken into account, Article 4(1)–(3) of the Directive specifies how the lapse of the five-year period should be assessed.

1. Loss of International Protection (Article 4(1a)) 8

Directive 2011/51/EU broadened the scope of the Long-Term Residents Directive to include refugees and beneficiaries of subsidiary protection (see above Article 1 MN 13). This extension of the personal scope was accompanied by a clarification in the newly introduced Article 4(1a) that beneficiaries of international protection cannot claim long-term residence status in cases of a revocation of, an ending of or an refusal to 120 See Iglesias Sa ´nchez, Free Movement, p. 800–801; Peers, Implementing Equality?, p. 443; and Acosta, The Long-Term Residence Status, p. 100. 121 Contrast the final formulation to Article 5(1) Commission Proposal, COM(2001) 127, p. 3. 122 See Hailbronner, Ausla ¨ nderrecht, § 9a MN 9. 123 See Article 16(2) Blue Card Directive 2009/50/EC. 124 See also Hailbronner, Ausla ¨ nderrecht, § 9a MN 10; and Halleskov, The Long-Term Residents Directive, p. 185–186; contra Peers et al., EU Immigration and Asylum Law Vol. 2, p. 299; similarly, ECJ, Kadzoev, C357/09 PPU, EU:C:2009:741 counted periods of detention before the entry into force of the Return Directive towards the maximum period of imprisonment under Article 15 Directive 2008/115/EC.

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renew their status. This entails that the loss of international protection hinders the acquisition of long-term resident status (see above Article 3 MN 6). The wording of Article 4(1a) shows that this exclusion is mandatory (‘shall not 9 grant’). Once international protection has been lost, individuals do not qualify for long-term resident status under Article 3 any longer. The situation may arise, however, that a beneficiary of international protection received a residence permit for other purposes before the loss of international protection, for instance for family reunion.125 If the other status is covered by Article 3(1) as a matter of principle, an application may be successful nonetheless.126 Periods of uninterrupted legal residence, first on the basis of international protection and then of family reunion, are accumulated for calculating the five-year period (see above MN 3).

2. Specific Rules for Certain Residence Permits (Article 4(2)) It is explained above that Article 3(2) excludes certain residence statuses from the 10 scope of the Directive, i. e. third-country nationals holding such a permit cannot apply for long-term resident status (see above Article 3 MN 9–21). The situation may arise, however, that migrants excluded from the scope of the Directive ‘upgrade’ their status by obtaining a residence permit covered by the Directive. In such a scenario, Article 4(2) lays down specific rules whether previous residence periods on the basis of permits excluded from the scope of the Directive can be taken account in the calculation of the five-year period on the basis of the new residence permit. In this respect, Article 4(2) distinguishes between different residence permits excluded from the scope of the Directive. Article 4(2)(1) obliges Member States not to take into account periods of temporary 11 residence or as a diplomatic or consular agent in accordance with Article 3(2)(e)–(f). The former exception for residence solely on temporary grounds is particularly relevant, since the vaguely formulated provision establishes a crucial bottleneck for the application of the Directive in practice (see above Article 3 MN 15–20). The wording (‘shall not be taken into account’) shows that the exception is mandatory: Member States cannot lay down more generous rules. Article 4(2)(2) asserts that half of the period of residence for study purposes or 12 vocational training in accordance with Article 3(2)(a) may be taken into account once a residence status covered by the Directive has been obtained. It is important to note that this option applies in scenarios of status upgrade only: without a status upgrade, students residing for purposes of study or training cannot apply for long-term resident status (see above Article 3 MN 10–11). It seems irrelevant, however, why the status upgrade was granted for as long as the new status is covered by the Directive. The wording of Article 4(2)(2) does not require a successful completion of studies.127 The wording (‘may be taken into account’) shows that the provision is optional. Member States do not have to provide for this possibility and if they do so they cannot exceed the 50 % quota provided, since Article 4(2)(2) only allows for the inclusion of up to half of residence periods as students. 125 Of course, the second resident status has to persist, i. e. a residence permit in accordance with Article 24 Asylum Qualification Directive which may be revoked as a result of the loss of international protection does not qualify for the purposes of acquiring long-term resident status. 126 See also Peers, Transfer of International Protection, p. 543. 127 In practice, an unsuccessful student may obtain a different residence permit nonetheless, for instance as a family member; since family reunion can contribute to take roots in a country (see Recital 6) in a similar way as labour market integration, it does not seem to run counter to the objective of the Directive to apply Article 4(2)(2) to such scenarios of status upgrades.

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Article 4(2)(3) exempts beneficiaries of international protection from the general rule in Article 3(2)(d) that residence periods as an asylum seeker are excluded from the scope of the Directive (see above Article 3 MN 14). The provision applies after a positive decision only and is mandatory (‘shall be taken into account’). Whenever a residence permit as a beneficiary of international protection is granted during the first 18 month after lodging the application, at least half of the period shall be taken into account, although Member States may decide to lay down rules that are more generous.128 After 18 months, any further period of residence as an asylum seeker counts fully towards acquiring long-term resident status after the application for international protection was approved. In order to avoid conflicting outcomes, the mandatory full inclusion of application periods should be read to apply only to the time elapsed after the 18-month deadline.129 14 Directive 2011/51/EU extending the scope of the Long-Term Residents Directive to beneficiaries of international protection modified Article 3(2)(b), (c) to exclude beneficiaries of temporary or complementary protection explicitly from the scope of the Directive (see above Article 3 MN 12–13). In the absence of an exception authorising Member States to take into account such periods of residence after a status upgrade, mirroring the express exception for students or beneficiaries of international protection in Article 4(2), residence periods as a beneficiary of temporary or complementary protection cannot be counted towards the mandatory (see above MN 2) five-year period of legal residence – even after a status upgrade when a migrant receives a different residence permit. To say otherwise contradicts the general scheme of the Directive.130 13

3. Periods of Absence (Article 4(3)) In accordance with Article 4(1), the five-year period of legal residence shall be ‘continuous’ and ‘immediately prior to the submission of the relevant application’ (see above MN 5). This strict rule is accompanied by an exception in Article 4(3) that periods of absence shall not interrupt the five-year period if the conditions set out in the paragraph are met. Periods of absence exceeding Article 4(3) hinder the acquisition of long-term resident status and the calculation of the five-year period starts from the beginning. While Article 4(3) concerns periods of absence before the acquisition of longterm resident status, absence once the status has been obtained is governed by Article 9. 16 Article 4(3)(1) establishes the basic rule that any absence shorter than six consecutive months does not interrupt the qualification period and that, moreover, such periods count towards the calculation of the five-year requirement. If, for instance, the qualification period started on 1 May 2016, the five-year requirement will be met after 30 April 2021 even if the applicant twice spent four months abroad. The reason for the absence is irrelevant and may concern holidays, study visits, work or any other reason. It is evident from the wording that absence signifies any travel to another country, including other Member States of the European Union. Article 4(3)(1) specifies, furthermore, that accumulated periods of absence shall not exceed ten months – a condition added by 15

128 The formulation ‘at least half of the period’ shows that more generous domestic rules are permitted for beneficiaries of international protection. 129 In case of a positive decision after 24 months, the first 18 month count half (although Member States are free to lay down more generous rules), while the next 6 months count fully, i. e. Member States are obliged to count at least 9 (18:2) + 6 = 15 months. 130 See Boeles et al., European Migration Law, p. 182; by contrast, Peers, Transfer of International Protection, p. 544 turns the relation between the rule in Article 3(2) and the exception in Article 4(2) upside down if he states that without an explicit statement to the contrary periods of residence under temporary or complementary protection should be taken into account after a status upgrade.

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the Council during the legislative process.131 This entails that a third-country national may be absent for an average period of two months per year. Whenever the 10-month rule is surpassed, even by a single day, Member States are obliged to refuse the application in light of the mandatory character of the five-year requirement (see above MN 2). Article 4(3)(2) affords Member States with a degree of flexibility to except longer 17 periods of absence in accordance with specific or exceptional reasons of a temporary nature which must be laid down in their national laws. The vague formulation of the provision leaves Member States discretion to define the reasons they will accept, reflecting a desire on the side of the Council not to regulate further exceptions in a more detailed manner in the Directive.132 If Member States use this option, they cannot count such additional periods of absence exceeding Article 4(3)(1) towards the fiveyear requirement, save for a derogation permitted in relation to secondment for employment in Article 4(3)(3). Another exception exists for holders of an EU Blue Card who may be absent for up 18 to 12 consecutive months and a total of 18 months irrespective of whether they relocate within the European Union on the basis of the Blue Card Directive.133

Article 5 Conditions for acquiring long-term resident status 1. Member States shall require third-country nationals to provide evidence that they have, for themselves and for dependent family members: (a) 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. Member States shall evaluate these resources by reference to their nature and regularity and may take into account the level of minimum wages and pensions prior to the application for long-term resident status; (b) sickness insurance in respect of all risks normally covered for his/her own nationals in the Member State concerned. 2. Member States may require third-country nationals to comply with integration conditions, in accordance with national law. Content I. II. III. IV.

General Remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Stable and Regular Resources (Article 5(1)(a)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Sickness Insurance (Article 5(1)(b)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Integration Conditions (Article 5(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

I. General Remarks Article 5 contains two sets of conditions for acquiring long-term resident status 1 complementing the formal requirements of a five-year period of legal residence in Articles 3–4. They concern substantive considerations of economic self-sufficiency and social integration. While the first condition is mandatory for Member States to establish in domestic laws, the second is optional and has been the subject of consider131

Contrast the final wording to Article 5(3) Commission Proposal, COM(2001) 127. The Commission Proposal had recommended to proceed towards further harmonisation. 133 See Article 16(3) Blue Card Directive 2009/50/EC and the option for a restriction to economic activities, voluntary service or studies in countries of origin in Article 16(5). 132

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able criticism from academic commentators. There is, in contrast to the Family Reunion Directive, no explicit requirement of adequate accommodation alongside the prerequisite for sufficient resources,134 although it can be argued that Article 7(1)(2) Directive 2003/109/EC establishes such a condition (see below Article 7 MN 10–12).

II. Stable and Regular Resources (Article 5(1)(a)) The economic requirement of ‘stable and regular resources’ is a crucial gateway for acquiring long-term resident status. The wording shows that it is mandatory (‘shall require’): Member States are not allowed to grant the status to someone without sufficient resources.135 According to Recital 7, this requirement pursues the objective ‘to avoid [a long-term resident] becoming a burden for the Member State.’ This explicit orientation at the financial interests of the Member States reaffirms that Article 5(1)(a) does not contradict the Directive’s principle objective of promoting the integration of long-term residents into host societies (see above Article 1 MN 16–17). Economic self-sufficiency should be construed, rather, as an element demonstrating that someone is genuinely integrated into the host society and qualifies, therefore, for long-term resident status. The condition of stable and regular resources shows that ‘the person has put down roots in the country’136 and ‘promot[es] economic and social cohesion.’137 3 The Long-Term Residents Directive does not define the term ‘stable and regular resources’, neither in Article 2 nor in Article 5. Its meaning has to be established, therefore, by means of interpretation. This interpretation follows the internal structure of the Directive, since long-term residents cannot invoke, unlike Union citizens, a Treaty-based right to residence that may influence the interpretation of secondary law.138 Moreover, it should be borne in mind that Article 5(1)(a) does not compete with the integration objective (see above MN 2) and that, therefore, the requirement of stable and regular resources does not necessarily require a strict interpretation like in the case of family reunion in relation to which the Court found the condition to complicate the realisation of the legislative objective.139 Indeed, the acquisition of longterm resident status promoting successful integration concerns a different scenario than first admission for purposes of family reunion. If the latter is rejected, the family cannot live together in the EU. By contrast, a rejection of long-term resident status due to a lack of resources does not usually oblige the migrant to leave the host society, since he continues to benefit from a legal residence status without which any application for long-term resident status would be unsuccessful. 4 Closer inspection of the drafting history demonstrates that the Council rejected a number of specifications which would have established more explicit indicators for the economic self-sufficiency requirement than the present Article 5(1)(a). The Commission had proposed to require resources corresponding to the level below which social assistance might be granted140 and had wanted to exempt third-country 2

134

See, by contrast, Article 7(1)(a) Directive 2003/86/EC. See Peers et al., EU Immigration and Asylum Law Vol. 2, p. 305. 136 Recital 6 of the Directive. 137 Recital 4 of the Directive. 138 ECJ, Zhu & Chen, C-200/02, EU:C:2004:639, paras 31–32 held that the Treaty-based free movement guarantee for Union citizens instructs a narrow reading of the sufficient resources requirement in Article 7(1)(b) Citizenship Directive 2004/38/EC (the former Directive 2000/364/EEC); for further reading, see Thym, Legal Framework for EU Immigration Policy, MN 28–31; and ibid., Elusive Limits, p. 26. 139 See ECJ, Chakroun, C-578/08, EU:C:2010:117, para 43. 140 Contrast the final wording of Article 5(1)(a) to Article 6(1)(a) Commission Proposal, COM(2001) 127. 135

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nationals born in the territory of a Member State from the condition.141 These proposals were rejected by the Council in the same way as a proposal by the European Parliament to require regular resources only ‘prior to the application.’142 Instead, the more vaguely formulated Article 5(1)(a) was meant to provide Member States with a certain discretion to define and apply domestic rules specifying the ‘stable and regular resources’ requirement.143 Corresponding domestic rules must be laid down in national law and comply with Directive 2003/109/EC, but need not replicate literally the wording of Article 5(1)(a) as some authors suggest in relation to the Family Reunion Directive.144 This corresponds to established principles governing the implementation of Directives in accordance with Article 288 TFEU. Applying the ‘stable and regular resources’ requirement requires and allows Member 5 States to carry out a prognosis which, according to the wording of Article 5(1)(a), relates to an ‘evaluation’ of the resources by reference to ‘their nature and regularity’. In light of the objective to avoid long-term residents becoming a burden on social assistance systems,145 this prognosis concerns present and future incomes like in the case of the almost identical formulation in Article 7(1)(c) Family Reunion Directive.146 In its Chakroun judgment, the ECJ found that Member States ‘may indicate a certain sum as a reference amount, but not as meaning that they may impose a minimum income level below which all [applications] will be refused, irrespective of an actual examination of the situation of each applicant.’147 This need for an individual examination extends to the Long-Term Residents Directive: sums laid down at national level such as the level of minimum wages or pensions are indicative, since an individual assessment must always be able to come to a different conclusion. The same applies to other indicators like the length of employment contracts.148 The wording of Article 5(1)(a) leaves no doubt that resources must be sufficient to 6 maintain both the applicant ‘and the members of his/her family’ even if the latter do not apply for long-term resident status in parallel. This broad assessment reiterates the rationale of the provision to avoid long-term residents becoming a burden on public finances (see above MN 2), since family members are usually obliged to assist themselves financially. In line with Article 2(e) the term ‘family members’ must be construed in accordance with the Family Reunion Directive 2003/86/EC that applies primarily to members of the nuclear family, in particular spouses and minor children.149 The definition in Article 2(e) concerns the interpretation of the term ‘family member’ and does not indicate that they should hold a formal status under the Family Reunion Directive.150 Other first-degree relatives and unmarried children above age are covered

141

This was rejected in accordance with Council doc. 10698/01 of 2 August 2001, p. 6. See the Amendment No. 19 proposed by the European Parliament, EP doc. P5_TA(2002)0030 of 5 February 2002 (OJ 2002 C 284 E/94). 143 See Boeles et al., European Migration Law, p. 182; and Halleskov, The Long-Term Residents Directive, p. 186. 144 See Hailbronner/Klarmann, Directive 2003/86/EC Article 7 MN 16. 145 See Recital 7 and above MN 2. 146 See Hailbronner/Klarmann, Directive 2003/86/EC Article 7 MN 13; and, for the relevance of future income, the Dutch Raad van State (Council of State), judgment of 5 December 2008, 200802115/1, LJN BG7504 cited by Wiesbrock, Legal Migration, p. 385. 147 ECJ, Chakroun, C-578/08, EU:C:2010:117, para 48 on the Family Reunion Directive. 148 Member States are free to establish reference durations, but cannot prescribe a strict time limit – as Cyprus used to do, cf. the Commission’s report on application, COM(2011) 585, p. 3. 149 See Article 4(1) Directive 2003/86/EC. 150 The idea put forward by Wiesbrock, Legal Migration, p. 373 is not confirmed by the wording and general scheme of Article 2(e) which concerns the meaning of certain terms. 142

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by the Family Reunion Directive only if they are dependent on the sponsor151 in the case of which the rationale of Article 5(1)(a) Directive 2003/86/EC argues in favour of interpreting the stable resources requirement to extend to them as well. Although other, more distant relatives may be covered by the Family Reunion Directive,152 it would overstretch the scope of Article 5(1)(a) Directive 2003/109/EC to broaden the sufficient resources requirement to distant relatives, in particular in scenarios in which the latter are not dependent on the applicant for long-term resident status. 7 Article 5(1)(a) does not specify the origin of the ‘resources’ and does not require, in particular, that they should be based on a personal ‘income’ stemming from an economic activity.153 This entails that various sources are possible, such as labour contracts, self-employed activities, invalidity or retirement pensions, a sufficient private fortune, or financial support by a sponsor which is regular and guaranteed.154 If the origin of the resources is irrelevant for as long as they are stable and regular, permanent contributions by family members count towards Article 5(1)(a) whenever applicants for long-term resident status do not have sufficient resources of their own.155 8 Like the term ‘stable and regular resources’ the explanation in Article 5(1)(a) that the resources should be sufficient to maintain the applicant and family members ‘without recourse to the social assistance system’ presents a concept of EU law that affords Member States with some discretion how to be applied in specific scenarios nonetheless (see above MN 4–5). The ECJ confirmed in the Chakroun judgment on the Family Reunion Directive that the autonomous interpretation of the term ‘social assistance system’156 should be construed in line with the objective pursued by the provision (see above MN 2) to ‘refer to assistance granted by the public authorities, whether at national, regional or local level, which can be claimed by an individual, in this case the sponsor, who does not have stable and regular resources.’157 This reading of the term social assistance system covers various forms of public support, be it financial or otherwise, and is not limited to social assistance within the meaning of the Regulation 492/2011, since the Social Security Coordination Regulation employs a different terminology.158

III. Sickness Insurance (Article 5(1)(b)) 9

Article 5(1)(b) establishes the additional requirement of a ‘sickness insurance in respect of all risks normally covered for by his/her own nationals.’ It is clear from other language versions that the formulation ‘his/her’ refers to the host State’s own nationals as the relevant comparator.159 To do so appears as a reasonable choice, since migrants who have been living in a country for a couple of years will usually be enrolled in similar sickness insurance schemes as nationals. Whenever there are different levels of 151

Cf. Article 4(2) Directive 2003/86/EC. See Article 4(3) Directive 2003/86/EC. 153 See Wiesbrock, Legal Migration, p. 373. 154 For more detail see, mutatis mutandi, See Hailbronner/Klarmann, Directive 2003/86/EC Article 7 MN 14. 155 See Hailbronner/Klarmann, Directive 2003/86/EC Article 7 MN 15; Peers et al., EU Immigration and Asylum Law Vol. 2, p. 302; and the Commission’s report on application, COM(2011) 585, p. 3. 156 See ECJ, Chakroun, C-578/08, EU:C:2010:117, para 45. 157 ECJ, ibid., para 46; see also Hailbronner/Klarmann, Directive 2003/86/EC Article 7 MN 18. 158 See, by analogy, ECJ, Brey, C-140/12, EU:C:2013:565, paras 46–58 and ECJ, Dano, C-333/13, EU:C:2014:2358, para 63 for an autonomous the meaning of the term ‘social assistance’ in Articles 7, 24 Citizenship Directive 2004/38/EC, which AG Wahl, Brey, C-140/12, EU:C:2013:337, paras 58–67 considered equivalent to Directive 2003/109/EC; for further reading, see Thym, Elusive Limits, p. 22–23. 159 See Handoll, Directive 2003/109/EC, Article 5 MN 15. 152

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sickness insurance available which are all common among nationals, Article 5(1)(b) does not require the highest level of protection possible. The average insurance situation among nationals sets the limit third-country nationals applying for long-term resident status must meet.

IV. Integration Conditions (Article 5(2)) Integration conditions, both in the Long-Term Residents Directive and in the Family 10 Reunion Directive, have been focal points of academic and political debates about the course of domestic and European immigration policies over the past years. It is described elsewhere that the Tampere European Council had originally embraced an equality-based reasoning which gave way to a position emphasising social cohesion during negotiations of the above-mentioned Directives.160 Article 5(2) Directive 2003/ 109/EC and Article 7(2) Directive 2003/86/EC, which were both introduced by the Council during the legislative procedure, are tangible outcomes of this debate. Notwithstanding the common background, it should be noted that there are im- 11 portant legal differences between language skills as a precondition for family reunion and long-term residence status. To make family reunion conditional upon the acquisition of language skills before arrival, may prevent the family from living together in the EU and thus has a human rights dimension.161 By contrast, the rejection of long-term resident status for lack of language skills does not usually oblige the migrant to leave the host society, since he continues to benefit from a legal residence status without which any application for long-term resident status would be unsuccessful.162 Austria, Germany and the Netherlands were the driving force behind the introduc- 12 tion of today’s Article 5(2) that the Commission Proposal had not mentioned. There was an intense debate in the Council during which the Commission and France objected to the demand for integration conditions before their subsequent approval,163 not least since a new French government in May 2002 with Nicolas Sarkozy as Interior Minister changed its position and embraced language requirements in domestic immigration policy.164 This new approach to migrant integration was not limited to Directive 2003/109/EC but informs wider political debates at European level, including debates about an autonomous integration policy.165 Closer inspection of debates in the Council shows that the legislature deliberately distinguished integration ‘conditions’ from ‘measures’ with only the former concerning the acquisition of language skills prior to the acquisition of long-term residence status.166 This has implications for the interpretation of Article 15(3) Long-Term Residents Directive (see Article 15 MN 8–10) but cannot be projected upon Article 7(2) Family Reunion Directive, since the latter requires an autonomous interpretation.167 160

See above Article 1 MN 8–11; Thym, Part C I, MN 36; and Hailbronner/Thym, Part A, MN 7–9. See Thym, Part C I, MN 52–54; and Skordas, Immigration and the Market, p. 220–221. 162 See Article 3(1) Directive 2003/109/EC; this entails that the rejection of long-term resident status will not usually affect the right to private and family life under Article 8 ECHR; see below Article 6 MN 6. 163 For details, see Carrera, In Search of the Perfect Citizen? (Martinus Nijhoff, 2009), p. 175–183; and Groenendijk, Citizenship and Integration, p. 442–445. 164 See Hauschild, Einwanderungsrecht, p. 350–351. 165 For instructive reading, see Carrera, Integration of Immigrants, p. 151–176. 166 See, in particular, Council doc. 7393/1/03 of 14 March 2003 notwithstanding certain differences among various language versions; Carrera, In Search of the Perfect Citizen? (Martinus Nijhoff, 2009), p. 179–180, 194–195; and Groenendijk, Citizenship and Integration, p. 444–445. 167 See ECJ, K & A, C-153/14, EU:C:2015:453, paras 45–48; and Hailbronner/Klarmann, Directive 2003/86/EC Article 7 MN 37–42. 161

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It is mentioned elsewhere that, according to the ECJ, the principal purpose of the Directive is the integration of third-country nationals into host societies and that the precise meaning of the concept of integration remains ambiguous (see above Article 1 MN 16–17). This ambiguity of the integration concept extends to the Preamble which comprises somewhat different integration concepts on closer inspection: while Recitals 2 and 12 seems to embrace 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.168 It would be wrong, therefore, to say that the Directive necessarily sides with a rights-based conception, which was prominent in the early years of EU immigration policy, since it contains various signs to the contrary.169 Article 5(2) is a crucial indicator that the EU legislature moved towards a conception of integration based upon a broader social or cultural outlook. 14 It is the prerogative of the ECJ to determine authoritatively the meaning of integration in the context of Directive 2003/109/EC (see below MN 18). In this regard, the absence of a definition of the term ‘integration’ in the Directive indicates that Member States have discretion when they determine the contours of domestic integration requirements, also considering that Article 5(2) explicitly refers to integration conditions ‘in accordance with national law.’170 It is to be expected that the ECJ will not regularly prevent, except for extreme cases, Member States from defining which measures they consider promoting integration. Rather, judges will limit state discretion through a proportionality assessment (see below MN 17, 19). Rules on integration conditions at national level must also comply with the principle of legal certainty, i. e. they must be clear and predictable. Member States cannot simply require applicants to be well integrated; they must define predictable criteria third-country nationals have to meet.171 15 In practice, integration conditions at national level may include, in particular, requirements for language proficiency (although the level necessary may vary between Member States) and/or knowledge of the host society (typically its history, legal orders and values). Member States may require third-country nationals to pass an exam, which can be preceded by compulsory or voluntary courses, which, in some cases, may be sufficient for acquiring long-term rezident status without the need to pass an exam.172 Roughly half of the Member State seem to have introduced integration conditions, although their contents differ greatly in substance.173 This diversity need not be perceived as a deficit, since integration requirements are closely associated with conceptions of national identity. Article 4(2) and 5(3) TEU as well as Article 79(4) TFEU demonstrate that a certain leeway for national differences can be an advantage in a European Union united in its diversity among Member States.174 13

168 Recital 2 refrains from embracing the Tampere objective (see above Article 1 MN 15), Recital 4 remains unclear by what means the Directive promotes 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, Ausla¨nderrecht, § 9a MN 2; and Handoll, The Long-Term Residents Directive, p. 147. 169 On the ambivalence of the integration concept more generally, see above Article 1 MN 17; and Thym, Part C I, MN 43–47. 170 See Halleskov, The Long-Term Residents Directive, p. 186; and Handoll, Directive 2003/109/EC, Article 5 MN 16. 171 See Acosta Arcarazo, Civic Citizenship Reintroduced?, p. 217–218, who does not clearly distinguish, however, between a vaguely formulated provision in a EU Directive and the need for more precise implementation by the Member States in accordance with Article 288 TFEU. 172 See the Commission’s Report on Application, COM(2011) 585, p. 3 173 See Commission, ibid.; and Bo ¨ cker/Strik, Language and Knowledge Tests, p. 157–176. 174 See also Thym, Part C I, MN 24.

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Article 5(2) covers beneficiaries of international protection if they apply for long- 16 term resident status after five years of legal residence. Participation in integration programmes under Article 34 Asylum Qualification Directive 2011/95/EU may facilitate compliance with integration conditions under Article 5(2) Directive 2003/109/EC in practice, but should be distinguished legally, since the Long-Term Residents Directive does not comprise, unlike Article 7(2) Family Reunion Directive, special rules for refugees.175 It is compatible with a concept of gradual migrant status change to require a lesser degree of integration skills at the time of arrival and to ask for more profound knowledge later. In the P & S case, the ECJ had to interpret Article 5(2) regarding a Dutch rule on a 17 civic integration test comprising language skills and knowledge of the host society, which long-term residents with a status under the Directive were obliged to comply with. Non-compliance could result in fines being imposed, but the status of long-term resident was not be lost. Judges found, firstly, that the wording and the context shows that Article 5(2) concerns integration conditions before long-term resident status is granted.176 By contrast, integration measures after the acquisition of the status are not covered by Article 5(2). On this basis, the ECJ concluded, secondly, that neither Article 5(2) nor the general theme of the Directive prevents Member States from establishing integration requirements after the status has been obtained,177 at least in so far as non-compliance with these rules cannot result in the revocation of long-term resident status.178 When exercising their residual legislative competence, Member States act within the scope of Union law and must respect general principles, including human rights and proportionality.179 This confirms that general principles limit discretion of the Member States when laying down integration conditions at national level (see above MN 14 and below MN 19).180 Assessing the legality of the Dutch rule in light of general principles, the ECJ had to 18 confront the meaning of integration in the context of the Long-Term Residents Directive (see above MN 13–14). The position of the Court comes to the fore if you compare its rather short reasoning with the arguments put forward by Advocate General Szpunar, who had started his analysis with a reminder of the Tampere objective181 and had stated explicitly that he could not see ‘how the introduction of a compulsory examination of language skills or knowledge of society could serve the aim pursued by the integration measures, namely to facilitate a person’s integration into society.’182 The ECJ did not follow this restatement of a rights-based conception of 175 Peers, Transfer of International Protection, p. 545–546 does not give doctrinal reasons for the diverging position put forward. 176 See ECJ, P & S, C-579/13, EU:C:2015:369, paras 34–38. 177 ECJ, ibid., para 38. 178 It seems that the acquisition and loss of the status are fully harmonised in Article 9, while rights and obligations accompanying it directly are harmonised to a limited extent only, as the limited scope of Article 11 ratione materiae reaffirms for purposes of equal treatment (see below Article 11 MN 7–10); the ECJ seems to have extended this reading to Article 5(2). 179 The question was dealt with more extensively by AG Szpunar, P & S, C-579/13, EU:C:2015:39, paras 63–75 and was not taken up by the ECJ, ibid., paras 45, 54, where judges did not address both human rights and the principle of proportionality grounding its conclusion on the principle of effet utile instead; on the distinction between these general principles, see Hailbronner/Thym, Part A, MN 15–17, 24–26. 180 See also Acosta, The Long-Term Residence Status, p. 211–219. 181 See AG Szpunar, P & S, C-579/13, EU:C:2015:39, para 28 assuming, wrongly in my view (see above Article 1 MN 15), that the EU legislature fully embraced the political statement in Tampere which is not legally binding. 182 AG Szpunar, ibid., para 89 adding that this conclusion concerned long-term residents who ‘regardless of his/her language skills and knowledge of the society in question, already has a certain network of

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integration highlighting instead that ‘it cannot be disputed that the acquisition of knowledge of the language and society of the host Member State greatly facilitates communication between third-country nationals and nationals of the Member State concerned and, moreover, encourages interaction and the development of social relations between them. Nor can it be contested that the acquisition of knowledge of the language of the host Member State makes it less difficult for third-country nationals to access the labour market and vocational training.’183 This principled declaration confirms that the ECJ subscribes to a contextual approach recognising the value of integration in light of broader social and economic factors. It is explained elsewhere that this position is not intrinsically linked to an ethno-cultural nationalism and can be compatible with human rights law, in particular the case law of the ECtHR.184 19 If civic integration tests support the attainment of the Directive’s principal objective to promote migrant integration and do not compete with it, general principles of Union law may lay down limits nonetheless (see above MN 14, 17). In the P & S case, the ECJ found that the level of costs for both registration fees for taking the exam and fines for non-compliance should not be excessive: an amount of several hundred euros per registration, like in the Dutch case, seems to be excessive, while lower levels of fees and fines are admissible.185 The final assessment of national rules regularly remains the responsibility of domestic courts, which will have to consider the socio-economic context of the Member State in question and the individual situation of third-country nationals concerned.186 This conclusion extends to integration conditions prior to the acquisition of long-term residence status which must always provide for a hardship clause allowing migrants to obtain the status in exceptional circumstances without complying with integration conditions in light of the circumstances of the individual case. This was explicitly confirmed by the ECJ for domestic rules on the basis of Article 7(2) Family Reunion Directive and can be extended to the Long-Term Residents Directive.187 The introduction of integration conditions must not be abused by Member States to prevent acquisition of the status.

Article 6 Public policy and public security 1. Member States may refuse to grant long-term resident status on grounds of public policy or public security.

ties with that society;’ this position is based on the assumption that integration can be shown irrespective of domestic requirements, which are presented instead as a hindrance for integration. 183 ECJ, P & S, C-579/13, EU:C:2015:369, para 47. 184 See Thym, Part C I, MN 45–46; the reference to an ECtHR chamber judgment, which was not confirmed by the Grand Chamber (see below Article 6 MN 6), and the necessary confusion with ethnic nationalism by Acosta, The Long-Term Residence Status, p. 192–195, 214–215 ignores the ECtHR’s Grand Chamber and the contextual complexity of social cohesion. 185 See ECJ, P & S, C-579/13, EU:C:2015:369, paras 49–54. 186 Parameters for the calculation of fee levels can be taken from case law on application fees for longterm resident permits, again in a Dutch case (see below Article 7 MN 5–6). 187 See ECJ, K & A, C-153/14, EU:C:2015:453, paras 57–58; and Hailbronner/Klarmann, Directive 2003/86/EC Article 7 MN 46–50; it should be noted, though, that the importance of social integration has a higher weight in the case of Directive 2003/109/EC, since rejection of an application will not usually affect the legality of the residence status (ass above MN 11) and given that long-term residents can generally be expected to have a better knowledge of the language and host societies than family members in scenarios of first admission.

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When taking the relevant decision, the Member State shall consider the severity or type of offence against public policy or public security, or the danger that emanates from the person concerned, while also having proper regard to the duration of residence and to the existence of links with the country of residence. 2. The refusal referred to in paragraph 1 shall not be founded on economic considerations. Content I. General Remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Interaction with Case Law on Union Citizens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Application to Specific Scenarios . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 9

I. General Remarks Article 6 concerns initial applications for long-term resident status, which Member 1 States may refuse on grounds of public policy or public security. By contrast, the revocation of long-term residence status for the same reasons is covered by Article 12 whose wording establishes stricter conditions for later expulsion than Article 6 for initial rejection. Both articles were discussed controversially during the legislative procedure, in which the Council rejected the Proposal by the Commission to align the provisions on public policy and public security in Directive 2003/109/EC with rules for Union citizens. The interpretation of Article 6 defies easy solutions due to a number of enduring ambiguities.

II. Interaction with Case Law on Union Citizens The concept of ‘public policy’ and ‘public security’ exceptions is well established in EU 2 law and has been an essential component of the economic freedoms constituting the single market ever since the Treaty of Rome. There is, hence, a body of settled case law on the interpretation of both exceptions which concern (1) the abstract interpretation of the terms ‘public policy’ and ‘public security’ and (2) the application of these standards to the free movement of Union citizens under Articles 21, 45, 49 TFEU. The core query about Article 6 Directive 2003/109/EC concerns the transferability of earlier case law on the single market to the Long-Term Residents Directive. Comments below will consider different interpretative principles, including the drafting history, the general scheme of the Directive, the constitutional context and case law on Turkish nationals, in order to determine whether there should be full synchronisation with rules for Union citizens. The initial Commission Proposal had taken up a number of formulations which are 3 well-established in both the case law on the free movement of Union citizens and corresponding provisions in today’s Citizenship Directive 2004/38/EC by suggesting that an application for long-term residence status could only be rejected ‘where the personal conduct of the person concerned constitutes an actual threat to public order or domestic security.’ Moreover, ‘criminal convictions shall not in themselves automatically warrant the refusal.’188 Austria and Germany, in particular, thought these placed excessive restrictions on Member State powers,189 thereby paving the way for their replacement 188 Article 7(1), (2) Commission Proposal, COM(2001) 127 mirroring today’s Article 27(2) Citizenship Directive 2004/38/EC and corresponding provisions in the former Article 3(1), (2) Directive 64/221/EEC (OJ English Special Edn. Ser. I Vol. 1963/64, p. 117–119). 189 See Council doc. 10698/01 of 2 August 2001, p. 7.

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by today’s formulation that abandoned the restrictive Commission Proposal with its orientation at rules for Union citizens. Along similar lines, an amendment sought by the European Parliament to explicitly direct interpretation towards Directive 64/221/EEC, the predecessor of the Citizenship Directive 2004/38/EC, was not followed by the Council.190 4 Besides the drafting history, the general scheme of the Long-Term Residents Directive argues against full synchronisation with rules on Union citizens. To this date, Article 12(1) contains stricter language requiring, unlike the wording of Article 6(1), ‘an actual and sufficiently serious threat’ to public policy or security, although the Council made clear that this condition should not be interpreted in parallelism to rules on Union citizens either (see below Article 12 MN 2, 6). This difference shows that, according to the general scheme, the rejection of an application under Article 6 shall be permissible under less onerous criteria than expulsion under Article 12.191 Moreover, the systemic structure of Union law does not support parallel treatment of long-term residents and Union citizens, since the latter are subject to more stringent rules than Articles 6, 12 Directive 2003/109/EC: after five years of legal residence, Article 28(2) Citizenship Directive 2004/38/EC limits restrictive measures to ‘serious grounds of public policy or public security.’ 5 It is sometimes said that case law on Turkish nationals establishes a precedent for farreaching synchronisation of rules for third-country nationals with Union citizens.192 It is argued elsewhere, however, that the ECJ’s ‘so far as is possible’193 formula cannot be applied to legislation on immigration indiscriminately, since it builds upon the wording and telos of the Association Agreement with Turkey which stipulates explicitly that rules on Turkish citizens should be approximated to the free movement of Union citizens.194 This implies that parallel interpretation ends where the objectives and the general scheme of Union law and the Association Agreement diverge195 – as the ECJ confirmed in the Ziebell judgment on the interpretation of the public policy and security exception in Article 14 Association Council Decision No. 1/80. While the starting point for interpreting the public policy and security exception is the same as for Union citizens,196 the application to specific scenarios can lead to differentiated conclusions, because the fundamental status of Union citizenship ‘justifies the recognition, for Union citizens alone, of guarantees which are considerably strengthened.’197 This confirms that full synchronisation is no foregone conclusion even if comparable terminology is used. Variations are possible. 6 In this context it is crucial to note that the general scheme and the constitutional context of the Long-Term Residents Directive differ from rules on Turkish nationals in relation to which the Association Agreement explicitly stipulates a certain degree of synchronisation with the free movement of Union citizens (see above MN 5). It is described elsewhere that the constitutional status of third-country nationals differs markedly from rules on Union citizens, since the latter benefit from a Treaty-based 190 Cf. the Amendment No. 24 proposed by the European Parliament, EP doc. P5_TA(2002)0030 of 5 February 2002 (OJ 2002 C 284 E/94). 191 See Hailbronner, Ausla ¨ nderrecht, § 9a MN 36; and Schmid-Dru¨ner, Der Begriff der o¨ffentlichen Sicherheit und Ordnung im Einwanderungsrecht ausgewa¨hlter EU-Mitgliedstaaten (Nomos, 2007), p. 409–411. 192 In the context of Directive 2003/109/EC, see Acosta, The Long-Term Residence Status, p. 130–137; and Groenendijk, Differential Treatment, p. 91–94. 193 ECJ, Bozkurt, C-434/93, EU:C:1995:168, para 20. 194 See Hailbronner/Thym, Part A, MN 19. 195 See Hailbronner/Thym, ibid., MN 19. 196 On Article 14 Association Council Decision No. 1/80, see ECJ, Nazli, C-340/97, EU:C:2000:77, paras 56–57; and ECJ, Cetinkaya, C-467/02, EU:C:2004:708, paras 41 et seq. 197 ECJ, Ziebell, C-371/08, EU:C:2011:809, para 73.

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right to free movement, while the former may ‘only’ invoke human rights in the EU Charter.198 Human rights may provide a safety net against expulsion that will be discussed in the context of Article 12 (see below Article 12 MN 9–10), but human rights in the ECHR cannot usually be relied upon to obtain a ‘better’ residence permit.199 This implies that the interpretation of Article 6 Directive 2003/109/EC is not predetermined by human rights considerations, since the rejection of long-term resident status will not usually affect the legality of residence. The principal objective of Directive to promote integration does not support full 7 synchronisation with Union citizenship either, since the absence of a threat to public policy or security can support for social cohesion in line with the contextual understanding of the integration objective (see above Article 5 MN 18). This is confirmed indirectly by the position of the ECJ on the Citizenship Directive in relation to which it found that criminal convictions and time spent in prison may suggest, even with regard to Union citizens, that ‘the integrating links previously forged with the host Member State have been broken.’200 On the basis of the arguments presented (see above MN 3–7), a full synchronisation 8 of Article 6 Directive 2003/109/EC with rules on Union citizens should be refuted, although this conclusion does not imply that no intermediate solution can be found.201 It rather seems that one may extend the abstract interpretation of the terms ‘public policy’ and ‘public security’ to Directive 2003/109/EC, while distinguishing between long-term residents and Union citizens in their application to specific scenarios (see below MN 9–12). This position seems to have been confirmed by the ECJ in a judgment on the interpretation of a similar rule in Article 24(1) of the former Asylum Qualification Directive 2204/83/EU: ‘While [the Citizenship Directive] pursues different objectives to those pursued by Directive 2004/83 and Member States retain the freedom to determine the requirements of public policy and public security in accordance with their national needs, which can vary from one Member State to another and from one era to another, the extent of the protection a [society] intends to afford to its fundamental interests cannot vary depending on the legal status of the person that undermines those interests.’202

III. Application to Specific Scenarios It is suggested above that the interpretation of the terms ‘public policy’ and ‘public 9 security’ may follow the abstract principles of earlier ECJ case law as starting point, while distinguishing between long-term residents and Union citizens in their application to specific scenarios in light of the differences in the wording, drafting history, general scheme, objectives and constitutional context (see above MN 3–8). If that is correct, the term ‘public policy’ refers, in line with settled ECJ case law, to a ‘genuine and sufficiently serious threat … affecting one of the fundamental interests of society.’203 It is also well 198

See Thym, Part C I, MN 28–37. This was explicitly confirmed by the Grand Chamber in a judgment rejecting a different interpretation of Article 8 ECHR by the ECtHR’s first section in ECtHR, judgment of 15 Jan 2007 (GC), No. 60654/ 00, Sisojeva v. Latvia, para 91; to cite the judgment of the first section and to ignore the different position of the Grand Chamber, as Acosta, The Long-Term Residence Status, p. 214–215 does, is a sign of either insufficient research or an attempt to misinform the reader about the position of the ECtHR. 200 ECJ, Tsakouridis, C-145/09, EU:C:2010:708, para 34. 201 Similarly, see Hailbronner, Ausla ¨ nderrecht, § 9a MN 30–39. 202 ECJ, T., C-373/13, EU:C:2015:413, para 77; the English version employs the term ‘company’ (not: society), which seems to be an unfortunate translation of the French ‘socie´te´.’ 203 The formula was first used by ECJ, Bouchereau, 30/77, EU:C:1977:172, para 35. 199

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established that Member States benefit from a margin of discretion when specifying what constitutes a threat to public policy.204 It is in this area of discretion where we may come to differentiated solutions for long-term residents in comparison to EU citizens. That is even more so given that the ECJ justified both early and more recent case law on the public policy exception for Union citizens by constitutional principles that do not embrace long-term residents: the ‘fundamental principle of free movement for workers’205 and the later introduction of Union citizenship vindicating ‘a particularly restrictive interpretation.’206 10 It will usually be sufficient for Member States to rely on the ‘public policy’ exception, since the Court tends to apply stricter criteria to the ‘public security’ exception which it relates primarily to scenarios of fundamental internal or external threats to ‘a country’s existence since not only its economy but above all its institutions, its essential public services and even the survival of its inhabitants depend upon them.’207 This definition may cover terrorism, although the ECJ has broadened its outlook in recent case law by emphasising that ‘a direct threat to the calm and physical security of the population’ through criminals whose offences disclose particularly serious characteristics, such as sexual abuse of their own children or involvement in drug trafficking.208 11 Given that Article 6 concerns initial applications for long-term resident status, the question is pertinent whether Member States can establish precise thresholds on previous criminal convictions above which denial of long-term resident status will be automatic. The Commission Proposal would have prevented such rules when it proposed to state explicitly that ‘criminal convictions shall not in themselves automatically warrant the refusal’ (see above MN 3). The Council rejected this solution and agreed on today’s Article 6(1)(2) instead that Member State shall consider the severity or type of offence ‘or’ the danger emanating from the person, thereby indicating that a sufficiently serious criminal conviction (or a series of smaller sentences corresponding to that level) can be covered by the public policy or security exception. This conclusion is reinforced by both Recital 8 that ‘the notion of public policy may cover a conviction for committing a serious crime’ and the general scheme of the Directive which explicitly lists criminal offenses as a relevant consideration in the context of the special public policy exception in Article 9(3). This confirms that, in contrast to Union citizenship and the Commission Proposal, criminal convictions as such can result in the activation of Article 6(1),209 although a rejection on this basis will always require a balancing exercise weighing public and private interests involved. 12 Article 6(1)(2) shows that previous criminal convictions or present dangers can never be sufficient to justify rejection of an application, since private interests of the applicant will also have to be taken into account. Article 6(1)(2) states explicitly that Member States shall have ‘proper regard to the duration of residence and to the existence of links with the country of residence.’ The resultant balancing exercise between threats to public policy and private interests requires domestic authorities or courts to weigh countervailing interests, mirroring the established case law of the ECtHR on the justification of expulsion decisions (see below Article 12 MN 9–10). This assessment will have to 204 See, by way of example, ECJ, Van Duyn, 41/74, EU:C:1974:133, para 18 for EU citizens; and, in the context of immigration and asylum, ECJ, T., C-373/13, EU:C:2015:413, para 77. 205 ECJ, Bouchereau, 30/77, EU:C:1977:172, para 33. 206 ECJ, Orfanopoulos & Olivieri, C-482/01 & C-493/01, EU:C:2004:262, para 65. 207 ECJ, Campus Oil, 72/83, EU:C:1984:256, para 34. 208 See ECJ, I., C-348/09, EU:C:2012:300, para 28; and ECJ, Tsakouridis, C-145/09, EU:C:2010:708; for comments, see Azoulai/Coutts, ‘Restricting Union Citizens’ Residence Rights on Grounds of Public Security’, CMLRev. 50 (2013), p. 553–570. 209 See Hauschild, Einwanderungsrecht, p. 352.

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consider that private interests will usually weigh less before the acquisition of long-term resident status and that a rejection of long-term resident status on the basis of Article 6(1) will not affect the legality of residence (see above Article 5 MN 3) and, therefore, will not usually have human rights implications (see above MN 6). This entails that criminal convictions will have a relatively greater weight than in the context of Article 12.210 The additional obligation in Article 6(2) not to found a refusal on economic con- 13 siderations will not usually have much relevance in practice, since Article 6 will primarily be activated to deny long-term residence permits to criminals. It shows that financial considerations, such as recourse to social assistance, cannot justify refusal in regular circumstances, also considering that corresponding public interests are protected by the stable and regular resources requirement in Article 5(1)(a). There may be exceptional scenarios, however, in which the stability and sustainability of public services, including the social assistance system, is at stake which may, as a non-economic consideration, justify restrictions on public policy grounds according to ECJ case law.211

Article 7 Acquisition of long-term resident status 1. To acquire long-term resident status, the third-country national concerned shall lodge an application with the competent authorities of the Member State in which he/ she resides. The application shall be accompanied by documentary evidence to be determined by national law that he/she meets the conditions set out in Articles 4 and 5 as well as, if required, by a valid travel document or its certified copy. The evidence referred to in the first subparagraph may also include documentation with regard to appropriate accommodation. 2. The competent national authorities shall give the applicant written notification of the decision as soon as possible and in any event no later than six months from the date on which the application was lodged. Any such decision shall be notified to the third-country national concerned in accordance with the notification procedures under the relevant national legislation. In exceptional circumstances linked to the complexity of the examination of the application, the time limit referred to in the first subparagraph may be extended. In addition, the person concerned shall be informed about his/her rights and obligations under this Directive. Any consequences of no decision being taken by the end of the period provided for in this provision shall be determined by national legislation of the relevant Member State. 3. If the conditions provided for by Articles 4 and 5 are met, and the person does not represent a threat within the meaning of Article 6, the Member State concerned shall grant the third-country national concerned long-term resident status. Content I. II. III. IV.

General Remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Procedural Guarantees and Fees (Article 7(1)–(2)). . . . . . . . . . . . . . . . . . . . . . . . . . 2 Appropriate Accommodation (Article 7(1)(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Individual Rights and Direct Applicability (Article 7(3)). . . . . . . . . . . . . . . . . . . 13

210 Proportionality assessments depend on the circumstance of the individual case; see Hailbronner/ Thym, Part A, MN 24–25. 211 See, notwithstanding ambiguities of the case law, Shuibhne/Maci, ‘Proving Public Interest’, CMLRev. 50 (2013), p. 965, 997–998; and Thym, Elusive Limits, p. 27–32.

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I. General Remarks 1

Article 7 sets out procedural requirements for the acquisition of long-term resident status and specifies that Member State are under an obligation to grant the status whenever an applicant fulfils the conditions. The additional reference, in Article 7(1)(2), that applicants may be asked to submit documentation with regard to appropriate accommodation is subject to some debate whether it constitutes an independent requirement Member States can foresee in their domestic laws.

II. Procedural Guarantees and Fees (Article 7(1)–(2)) It is a general feature of EU immigration law that procedural standards in legislation are usually limited to a minimum level of protection to allow Member States to adapt the European requirements to their domestic administrative structure.212 The corresponding wide discretion of Member States how to design domestic procedural rules can be limited by both explicit provisions, like Article 7 Directive 2003/109/EC, and general principles of Union law, including human rights and limits to national procedural autonomy.213 It is confirmed by Recital 10 that national procedural rules ‘should not constitute a means of hindering the exercise of the right of residence.’ 3 It is not trivial to say, as Article 7(1)(1) does, that third-country nationals ‘shall lodge an application’ to acquire long-term resident status, since doing so confirms that it is not acquired automatically, like in the case of Union citizens and Turkish nationals, even though Member States are obliged to grant it if the conditions are met (see below MN 14). Applications can be withdrawn during the procedure.214 In the absence of more specific instructions, it is left to the discretion of Member States to decide on technicalities relating to the modalities of the application and the procedure to be followed. 4 The second sentence of Article 7(1)(1) endorses that applications shall be accompanied by documentary evidence ‘to be determined by national law’ and specifies that such documentation shall relate primarily to the conditions set out in Article 4 and 5, i. e. the five-year period of uninterrupted legal residence,215 stable and regular resources, sickness insurance, possible integration conditions and, if required, the travel document mentioned in Article 7(1)(1).216 Other documentation may also be required, at least in so far as it necessary for domestic authorities to take a decision.217 However, it would run counter to the effet utile of the Directive if Member States erected prohibitive procedural hurdles for acquiring long-term resident status (see above MN 2), although such verdict will always depend on the specificities of the individual case. 5 Article 7 does not contain any prescription on application fees218 and it is therefore up to Member States to decide whether and if yes how much fees they charge, although 2

212

See Thym, Part C I, MN 19. See Hailbronner/Thym, Part A, MN 35–37. 214 This was confirmed implicitly by ECJ, Iida, C-40/11, EU:C:2012:2405, paras 46–48. 215 If residence is considered legal without a residence permit, like in the case of Turkish nationals (see above Article 3 MN 7), Member States may require the submission of documentation verifying that the conditions for legal residence without a residence permit are met. 216 There is no need for another provision in the Directive to allow Member States to require a valid travel document, as Boelaert-Suominen, Directive 2003/109/EC, p. 1024 seems to suggest, for the simple reason that this optional procedural obligation is explicitly provided for in Article 7. 217 They may ask, for instance, for documentation relating to an assessment of possible threats under the public policy and security exception in Article 6. 218 Article 9(3) of the Commission Proposal, COM(2001) 127 that the permit shall be issued free of charge was rejected by the Council. 213

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excessive fees can run counter to general principles of Union law (see above MN 2). This was confirmed by the ECJ in a judgment on infringement proceedings against the Netherlands in which judges relied on the principle of effet utile to prevent Member States from charging fees that could prevent third-country nationals from submitting an application.219 The ECJ concluded that the Netherlands had transgressed its discretion, since the amount charged was roughly seven times higher than the fee for Dutch identity cards (the ECJ was careful to highlight that domestic ID cards are a relative comparator and that specific administrative requirements for particular permits can be taken into account).220 It is difficult to distil clear guidance from the above-mentioned judgment against the Netherlands, since it concerned various fee levels of 201 EUR for regular applications under Article 7 and amounts between 188 and 830 EUR for diverse scenarios of intra-EU movement in accordance with Article 24–23 of the Directive.221 The Dutch State Council later considered a modified fee level of 130 EUR to be compatible with the Directive, although exemptions may have to be provided for parallel applications by family members.222 Further clarification may result from a preliminary reference by an Italian court concerning application fees between 80 and 200 EUR.223 What is certain, however, is that state discretion is limited: Member States must not charge prohibitive fees. Article 7(2)(1) lays down a time limit of up to six months, although the Council introduced an exemption for ‘exceptional circumstances linked to the complexity of the examination’ in Article 7(2)(2) during the legislative procedure.224 The open formulation on exceptions indicates that Member States have a wide discretion and any verdict about violations will ultimately depend on the circumstances of the individual case. Article 7(2)(4) refers to national law concerning any consequences of no decision being taken in what seems to be an attempt, by the Council, to prevent the ECJ from developing unforeseen consequences, such as automatic acquisition of the status.225 Of course, an extension of the time limit does not release Member States from the obligation to grant a residence permit whenever the conditions are met (see below MN 14).226 Article 7(2)(3) requires Member States to inform ‘the person concerned’ about his/ her rights and obligations under this Directive, although the precise meaning of this obligation, which was not part of the original Commission Proposal, remains obscure.227 Article 7(2)(1) obliges Member States to take a ‘written’ decision, which, furthermore, must comply with general principles of Union law on the right to good administration,228 including the right to a reasoned decision confirmed by Article 10(1) of Directive 2003/109/EC. Member States are also obliged to provide an effective remedy 219

See ECJ, Commission vs. the Netherlands, C-508/10, EU:C:2012:243, paras 65, 69–70. ECJ, ibid., paras 75–78 emphasises that the situation of Union citizens and third-country nationals cannot be compared directly (paras 77–78) and that the principled procedural discretion of Member States may take account of administrative specificities (para 76). 221 See ECJ, ibid., paras 18, 58–61 for the amounts involved; ibid., paras 75–78 do not distinguish between different scenarios despite the marked difference in fee levels. 222 The Dutch State Council (Raad van State), judgment of 17 June 2014, 201401261/1/V1 concluded that an amount of 4 X 130 EUR for two parents and two children to be prohibitive (apparently, the Netherlands lower the fee level for minor applicants to 53 EUR as a result). 223 See Case C-309/14, CGIL & INCA, which was pending at the time of writing. 224 By contrast, Article 8(2) Commission Proposal, COM(2001) 127 would have allowed for an extension only in the absence of documentary evidence to be submitted by the applicant. 225 It could be argued, though, that obligations of the Member States prescribed by general Union law, such as Francovich-style damages, are not excluded by Article 7(2)(4). 226 See Peers et al., EU Immigration and Asylum Law Vol. 2, p. 306. 227 See Peers et al., ibid., p. 307. 228 Article 42 EU Charter applies directly to EU institutions only, but can be extended to Member States on the basis of general principles; see Hailbronner/Thym, Part A, MN 37. 220

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against rejection in line with Article 47 EU Charter and the limits to national procedural autonomy229 – as Article 10(2) confirms.

III. Appropriate Accommodation (Article 7(1)(2)) The meaning of the additional reference, in Article 7(1)(2), that applicants may be asked to submit documentation with regard to appropriate accommodation is subject to some debate. There are two options how the provision can be interpreted: (1) it establishes a procedural formality authorising Member States to ask corresponding documentation; (2) it lays down an optional requirement for acquiring long-term resident status that may result in rejection. Unfortunately, the drafting history does not resolve the puzzle, since the provision was introduced at the request of the Council without an explanation what it was meant to mean. 11 Both possibilities can rely on doctrinal arguments supporting each position. Option 1 (procedural obligation) will emphasise that accommodation is not listed in Article 5(1) mirroring Article 7(1)(a) Family Reunion Directive 2003/86/EC and that the wording of Article 7(1)(2) Directive 2003/109/EC refers to documentation only without specifying that an additional condition is established; such information may be necessary, however, to apply other provisions of the Directive, such as the stable resources requirement or, in extreme scenarios, the public policy exception.230 Option 2 (additional condition) will emphasise that it is up to the legislature to determine the structure of directives and that conditions need not be laid down in Article 5, as a number of undisputed requirements or exceptions in Articles 4–6 confirm.231 To note that the Directive contains an exhaustive list of conditions for obtaining the status does not resolve the question,232 since our query is precisely about whether Article 7(1)(2) constitutes such a requirement in the first place. 12 On the basis of the arguments presented above, it is not possible to present a clear-cut doctrinal conclusion and it will be the responsibility of the ECJ to take an authoritative decision. In case it opts for Option 1, the documentation requirement could be positively construed as an indicator among many supporting Member States in deciding whether an applicant has stable and regular resources (see above Article 5 MN 5). 10

IV. Individual Rights and Direct Applicability (Article 7(3)) 13

In accordance with Article 7(1), applicants ‘shall lodge an application’ which is mandatory, therefore, to acquire the status (see above MN 3). This requirement is not trivial, but confirms that long-term resident status is not acquired automatically, like residence status in the case of Union citizens and Turkish nationals for whom residence permits are declaratory in nature, since they confirm a right ‘acquired independently of the issue of a residence permit’233 if the conditions set out in the Treaty are (no longer) fulfilled.234 The ECJ recognised that for acquiring long-term resident status one ‘must submit an application.’235 229

See Hailbronner/Thym, ibid., MN 35–37. This seems to be the position of the Commission’s report on application, COM(2011) 585, p. 4; and Peers et al., EU Immigration and Asylum Law Vol. 2, p. 302, 306. 231 See Hailbronner, Ausla ¨ nderrecht, § 9a MN 46; and Halleskov, The Long-Term Residents Directive, p. 186. 232 See Acosta Arcarazo, Civic Citizenship Reintroduced?, p. 209. 233 Settled ECJ case law ever since ECJ, Royer, 48/75, EU:C:1976:57, para 32. 234 See Thym, Elusive Limits, p. 39–43; for Turkish nationals see Article 3 MN 7. 235 ECJ, Commission vs. Netherlands, C-508/10, EU:C:2012:243, para 67 in line with AG Bot, ibid., EU:C:2012:25, para 75; similarly, ECJ, Iida, C-40/11, EU:C:2012:2405, para 47; ECJ, Ajdini, C-312/12, 230

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Article 7(3) obliges Member States to approve an application if the conditions are met 14 (‘shall grant’), thereby confirming that Member States had no general discretion whether to grant the status as sometimes was the case in national immigration laws before the adoption of the Directive.236 The ECJ confirmed that applicants ‘have the right to obtain long-term resident status’237 if the requirements under the directive and domestic law are fulfilled.238 It is the purpose of the time limit enshrined in Article 7(1) to ensure that domestic authorities comply with their obligations (see above MN 7). When they fail to do so, applicants can seize domestic courts (see above MN 9), which are obliged to apply the conditions set out in the Directive directly whenever domestic law diverges from them. Such direct application of the Directive should not be confused with the necessity to lodge an application in accordance with Article 7 for obtaining the status (see above Article 4 MN 4). An individual right of applicants to receive the status precludes an application of 15 domestic immigration quotas or points-based admission systems if they can result in the rejection of an application contrary to Article 7(3).239 It depends on the interpretation of the statutory provisions in question whether national legislatures or domestic authorities and courts have discretion to specify the meaning when adopting implementing legislation or deciding individual cases. To do so precedes the conclusion that an applicant has an individual right be granted a residence permit.240

Article 8 Long-term resident’s EC residence permit 1. The status as long-term resident shall be permanent, subject to Article 9. 2. Member States shall issue a long-term resident’s EC residence permit to longterm residents. The permit shall be valid at least for five years; it shall, upon application if required, be automatically renewable on expiry. 3. A long-term resident’s EC residence permit may be issued in the form of a sticker or of a separate document. It shall be issued in accordance with the rules and standard model as set out in Council Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uniform format for residence permits for third-country nationals(7). Under the heading ‘type of permit’, the Member States shall enter ‘long-term resident – EC’. 4. Where a Member State issues a long-term resident’s EU residence permit to a third-country national to whom it granted international protection, it shall enter the following remark in that long-term resident’s EU residence permit, under the heading ‘Remarks’: ‘International protection granted by [name of the Member State] on [date]’. 5. Where a long-term resident’s EU residence permit is issued by a second Member State to a third-country national who already has a long-term resident’s EU residence EU:C:2013:103, para 25 (only available in French); Peers et al., EU Immigration and Asylum Law Vol. 2, p. 299; Peers, ‘The Court of Justice Lays the Foundations for the Long-Term Residents Directive’, CMLRev. 50 (2013), p. 529, 547–548; and Groenendijk, Citizenship and Integration, p. 436. 236 See Groenendijk/Guild, Converging Criteria, p. 41. 237 ECJ, Commission vs. Netherlands, C-508/10, EU:C:2012:243, para 68, although AG Bot, ibid., EU:C:2012:25, para 75 was more explicit about the absence of discretion. 238 See Acosta Arcarazo, Civic Citizenship Reintroduced?, p. 209; ter Steeg, Einwanderungskonzept, p. 382; and Groenendijk, Citizenship and Integration, p. 435–436. 239 See, with regard to Austria, the Commission’s report on application, COM(2011) 585, p. 4. 240 See Hailbronner/Thym, Part A, MN 15 referring to ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 56–62 on visas; and ECJ, Ben Alaya, C-491/13, EU:C:2014:2187, paras 23–27, 33. (7) OJ L 157, 15.6.2002, p. 1.

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permit issued by another Member State which contains the remark referred to in paragraph 4, the second Member State shall enter the same remark in the long-term resident’s EU residence permit. Before the second Member State enters the remark referred to in paragraph 4, it shall request the Member State mentioned in that remark to provide information as to whether the long-term resident is still a beneficiary of international protection. The Member State mentioned in the remark shall reply no later than 1 month after receiving the request for information. Where international protection has been withdrawn by a final decision, the second Member State shall not enter that remark. 6. Where, in accordance with the relevant international instruments or national law, responsibility for the international protection of the long-term resident was transferred to the second Member State after the long-term resident’s EU residence permit referred to in paragraph 5 was issued, the second Member State shall amend accordingly the remark referred to in paragraph 4 no later than 3 months after the transfer. Content I. General Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Validity and Renewal (Article 8(1)–(3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Beneficiaries of International Protection (Article 8(3)–(6)). . . . . . . . . . . . . . . .

1 2 8

I. General Remarks 1

Article 8 contains rules on technical specificities and the validity of long-term resident permits. It complements the procedural requirements in Article 7 in whose context the question of fees is discussed (see above Article 7 MN 5–6). Article 8(4)–(6) were introduced to protect beneficiaries of international protection.

II. Validity and Renewal (Article 8(1)–(3)) Article 8(1) states categorically that the status of long-term resident ‘shall be permanent.’ This simple submission implies that long-term resident status is not lost if the conditions for acquisition are no longer fulfilled, for instance when a long-term resident loses his job and no longer has stable and regular resources as stipulated by Article 5(1)(a).241 The reference to Article 9 accentuates that it can only be lost in the cases listed therein, such as fraud, expulsion or relocation abroad. 3 The permanence of the status (see above MN 2) should be distinguished from the validity of residence permits, which shall be valid ‘at least for five years.’ This formulation gives Member States some flexibility to determine time limits, including the option of unlimited validity the Commission Proposal would not have allowed for.242 4 Article 8(2) maintains that renewal shall be automatic, although Member States may require an application contrary to the Commission Proposal.243 Article 9(3) confirms that the optional application requirement for renewal does not entail that the status is lost if the renewal procedure is not followed upon expiry. It is not clear in how far Member 2

241

See the Explanatory Report attached to the Commission Proposal, COM(2001) 127, p. 19. Austria and Germany asked for more flexibility to account of their domestic administrative practice; see Council doc. 10698/01 of 2 August 2001, p. 9. 243 Contrast the final wording of Article 8(2) to the second sentence of Article 9(1) Commission Proposal, COM(2001) 127. 242

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States can draw consequences from non-compliance with the renewal requirement, although it seems that general principles of Union law authorise sanctions.244 The formulation ‘automatically renewable’ reaffirms that domestic authorities are not allowed to examine the conditions for acquiring the status again (see above MN 2). The purpose of the renewal procedure is to establish contact between the administration and person concerned in order to verify, for instance, his details or civil status.245 In the absence of any indication to the contrary, Member States can charge fees for 5 renewal, although general principles of Union law may limit state discretion. When setting the fee level, Member States ought to account for the limited complexity of the renewal procedure which does not require an assessment whether the conditions under Articles 3– 6 are still met (see above Article 7 MN 5–6).246 Like in the case of initial application, individuals can file lawsuits when renewal is rejected (see above Article 7 MN 9). Article 8(3) specifies technical requirements for the long-term residence permit 6 which, according to Recital 11, should ‘satisfy high-level technical standards, notably as regards protection against falsification and counterfeiting, in order to avoid abuses.’ Regulation (EC) No. 1030/2002 has been amended various times, including in 2008 when new security features and biometric identifiers were introduced. Those receiving a long-term residence permit on the basis of an EU Blue Card shall 7 be entered the remark ‘former EU Blue Card holder’ in the relevant section of the residence permit.247 This grants them a number of benefits, including longer periods of absence from the Community territory (see below Article 9 MN 9).

III. Beneficiaries of International Protection (Article 8(3)–(6)) Article 8(4)–(6) were introduced by Directive 2011/51/EU (see above Article 1 8 MN 13). Their primary purpose is to ensure compliance with the principle of nonrefoulement, especially in situations of intra-EU movements. The remark to be entered in the residence permit is meant to inform other Member States of the protection background.248 It should be noted that the remark concerns protection by a specific Member States who granted international protection in the first place (see below MN 10–11), thereby reaffirming that the EU asylum status remains attached to a specific Member State.249 Article 8(4) obliges Member States to enter the remark on international protection 9 by the state issuing the long-term resident permit. If international protection is revoked at a later stage, long-term resident status is not lost (see above Article 3 MN 6), but Member States can delete the remark in the permit.250 Whenever the migrant relocates to another Member State, the remark informs the second Member State about the protection status. This may become practically relevant for purposes of Article 12(3a)– (3c) or Article 22(3a) when a residence permit in the second Member State is denied or withdrawn (see below Article 12 MN 11–13 and Article 22 MN 12). 244 It is a general principle that non-compliance with obligations under EU law should be subject to sanctions which are effective, dissuasive and proportionate; see ECJ, Pastoors & Trans-Cap, C-29/95, EU:C:1997:28, para 24. 245 See the Commission statement according to Council doc. 10698/01 of 2 August 2001, p. 9. 246 The Commission, COM(2011) 585, p. 5 reports some practical problems in this respect. 247 See Article 17(2) Blue Card Directive 2009/50/EC 248 See Recital 5 Directive 2011/51/EU (OJ 2011 L 32/1). 249 See Hailbronner/Thym, Part D I, MN 17. 250 Deletion before relocation to a second Member State is not explicitly provided for, but is permissible in light of the general scheme and the objective of Article 8(4) to protect beneficiaries of international protection.

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Article 8(5) concerns the rather specific situation that a long-term resident from a first Member State lives in a second Member State for more than five years and acquires long-term residence status in a second Member State (see below Article 12 MN 11). In this case ‘the same remark’ as in Article 8(4) shall be entered into the permit issued by the second Member State, thereby perpetuating the explanatory purpose of the original remark on the protection granted by the first Member State. Note that this construction does not transfer responsibility for international protection to the second Member State (see above MN 8) which, again, may become relevant in situations of expulsion. 11 Directive 2011/51/EU extending the scope of the Long-Term Residents Directive to beneficiaries of international protection stated explicitly: ‘Transfer of responsibility for protection of beneficiaries of international protection is outside the scope of this Directive.’251 Article 8(6) reaffirms this position by stating that the transfer of responsibility for international protection follows ‘the relevant international instruments or national law’ (not: Union law), such as the Council of Europe transfer agreement of 1980.252 It remains the decision of Member States to decide, subject to the abovementioned legal instruments and domestic laws, whether to transfer protection. It is the sole purpose of Article 8(6) to ensure that the remark informing other Member States (see above MN 9) is adopted accordingly. 10

Article 9 Withdrawal or loss of status 1. Long-term residents shall no longer be entitled to maintain long-term resident status in the following cases: (a) detection of fraudulent acquisition of long-term resident status; (b) adoption of an expulsion measure under the conditions provided for in Article 12; (c) in the event of absence from the territory of the Community for a period of 12 consecutive months. 2. By way of derogation from paragraph 1(c), Member States may provide that absences exceeding 12 consecutive months or for specific or exceptional reasons shall not entail withdrawal or loss of status. 3. Member States may provide that the long-term resident shall no longer be entitled to maintain his/her long-term resident status in cases where he/she constitutes a threat to public policy, in consideration of the seriousness of the offences he/she committed, but such threat is not a reason for expulsion within the meaning of Article 12. 3a. Member States may withdraw the long-term resident status in the event of the revocation of, ending of or refusal to renew international protection as laid down in Articles 14(3) and 19(3) of Directive 2004/83/EC if the long-term resident status was obtained on the basis of international protection. 4. The long-term resident who has resided in another Member State in accordance with Chapter III shall no longer be entitled to maintain his/her long-term resident status acquired in the first Member State when such a status is granted in another Member State pursuant to Article 23. In any case after six years of absence from the territory of the Member State that granted long-term resident status the person concerned shall no longer be entitled to maintain his/her long term resident status in the said Member State. 251

Recital 9 Directive 2011/51/EU (OJ 2011 L 32/1). See European Agreement on Transfer of Responsibility for Refugees of 16 October 1980, ETS No. 207; and Peers, Transfer of International Protection, p. 531 et seq. 252

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By way of derogation from the second subparagraph the Member State concerned may provide that for specific reasons the long-term resident shall maintain his/her status in the said Member State in case of absences for a period exceeding six years. 5. With regard to the cases referred to in paragraph 1(c) and in paragraph 4, Member States who have granted the status shall provide for a facilitated procedure for the re-acquisition of long-term resident status. The said procedure shall apply in particular to the cases of persons that have resided in a second Member State on grounds of pursuit of studies. The conditions and the procedure for the re-acquisition of long-term resident status shall be determined by national law. 6. The expiry of a long-term resident’s EC residence permit shall in no case entail withdrawal or loss of long-term resident status. 7. Where the withdrawal or loss of long-term resident status does not lead to removal, the Member State shall authorise the person concerned to remain in its territory if he/she fulfils the conditions provided for in its national legislation and/or if he/she does not constitute a threat to public policy or public security. Content I. II. III. IV. V. VI. VII. VIII.

General Remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Loss of Entitlement (Article 9(1)–(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Threat to Public Policy (Article 9(3)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Revocation of International Protection (Article 9(3a)). . . . . . . . . . . . . . . . . . . . . . Relocation to other Member States (Article 9(4)). . . . . . . . . . . . . . . . . . . . . . . . . . . . Reacquisition of Status (Article 9(5)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Expiry of Residence Permits (Article 9(6)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Status in Default of Removal (Article 9(7)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 10 12 13 15 16 17

I. General Remarks Article 9 defines the reasons for withdrawal or loss of long-term resident status 1 through a collection of requirements complementing, as a negative counterpart, the conditions for status acquisition under Articles 4–7. Given that the Directive enshrines an individual right to status acquisition (see above Article 7 MN 13–15), Article 9 should be read to establish an exhaustive list of conditions for loss or withdrawal.253 This entails that long-term resident status is retained if the conditions for initial acquisition are not fulfilled anymore and if the hurdles for status withdrawal under Article 9 are passed. The catalogue was extended considerably during the legislative procedure and covers a range of diverse reasons from fraud and absence over revocation of refugee status to re-acquisition. The terms ‘withdrawal or loss’ used in the heading of the Article are not defined in 2 the Directive. The distinction, which did not feature in the Commission Proposal, can be traced back to a suggestion by Austria, supported by Spain and Germany, that one should distinguish between a ‘withdrawal’ requiring a positive decision, in particular in the case of today’s Article 9(1)(a), and ‘loss’ occurring automatically, for instance in relation to Article 9(1)(b), (c).254 This reading is confirmed indirectly by Article 10 which requires reasons to be given only for decisions rejecting an application or withdrawing that status (and not in situations of loss). The formulation ‘shall no longer 253 See Peers et al., EU Immigration and Asylum Law Vol. 2, p. 312; and Boelaert-Suominen, Directive 2003/109/EC, p. 1025. 254 See Council doc. 10698/01 of 2 August 2001, p. 11.

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be entitled’ in Article 9(1) does not support a different reading, since it was introduced by the Council in order to avoid the term withdrawal and, therefore, covers both withdrawal and loss.255 In practice, automatic loss will concern periods of absence under Article 9(1)(c) primarily, since most other scenarios require a positive decision on withdrawal or expulsion (see below MN 5–6, 12–13), while the legal affects of Article 9(4)(1), (2) are not evident (see below MN 13–14). 3 In the absence of indications to the contrary, Member States have to lay down rules on administrative and judicial procedure subject to the limits established by general principles of Union law (see above Article 7 MN 2–4). Article 10 confirms that reasons must be given for rejections of withdrawals and that courts can be seized.

II. Loss of Entitlement (Article 9(1)–(2)) Article 9(1)(a) allows for withdrawal by means of administrative decision (see above MN 2) after the detection of fraudulent acquisition. Since the term is not defined in the Directive, it is up to Member States to characterise specific conditions what ought to be considered fraudulent. It is to be noted that the term ‘fraudulent’ differs from the term ‘abuse’, which the ECJ tends to interpret restrictively.256 The introductory formulation ‘shall no longer’ indicates that withdrawal takes effect ex nunc, i. e. periods of residence before withdrawal based on a permit acquired fraudulently remain legal. 5 The conditions for adopting expulsion measures are discussed below (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 a expulsion decision. Note that automatic loss is, according to Article 9(1)(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(1)(b). 6 Article 9(1)(c) stipulates that periods of absence of at least 12 consecutive months entail the automatic loss of long-term resident status (see above MN 2). Similar rules can be found in many other instruments on immigration, although the Long-Term Residents Directive introduces two important innovations: Firstly, the 12-month period is relatively long compared, for instance, with Turkish nationals,257 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.258 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.259 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). 4

255 Contrast the wording of Article 9(1) to Article 10(1) Commission Proposal, COM(2001) 127; Peers et al., EU Immigration and Asylum Law Vol. 2, p. 312 asserts a different reading without giving arguments. 256 See, for Article 35 Citizenship Directive 2004/38/EC, ECJ, McCarthy u. a., C-202/13, EU:C:2014:2450. 257 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, Cetinkaya, C-467/02, EU:C:2004:708, paras 36, 38; and Peers, Implementing Equality?, p. 455. 258 See Article 10(1)(a), (3) Commission Proposal, COM(2001) 127 mirroring Article 16(4) Directive 2004/38/EC. 259 For the innovative character, see Farahat, ‘“We want you! But …” – Recruiting Migrants and Encouraging Transnational Circulation Through Progressive Inclusion, ELJ 15 (2009), p. 700, 712–724.

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It is not clear whether short return visits will result in the 12-month period starting 7 again. In light of the purpose of promoting integration (see above Article 1 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 residence test’ of the Social Security Coordination Regulation as a point of reference,260 although Member States should never apply formalistic criteria when excluding short term visits, since doing so should always be based on the assessment of the individual situation. The wording suggests that relocation to the United Kingdom, Denmark or Ireland may not result in the loss of long-term resident status,261 although this conclusion can be disputed in light of the general scheme of the Directive given that these three Member States decided voluntarily not to participate in its adoption (see above Article 1 MN 3). 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).262 In practice, Member States have a 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.263 An exception from Article 9(1)(c) exists for long-term residents holding the status as 9 a former EU 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.264 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.265 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 260

See Article 1(f) Regulation (EC) No. 883/2004 and corresponding case law. See Peers et al., EU Immigration and Asylum Law Vol. 2, p. 312. 262 This outcome might also be a simple mistake after the Council decided to change the rather complex construction of Article 10(1)(a), (2) Commission Proposal, COM(2001) 127. 263 See the Explanatory Memorandum for Article 10(3) Commission Proposal, COM(2001) 127, p. 20; and Skordas, Immigration and the Market, p. 218. 264 See Article 16(4), (5) Blue Card Directive 2009/50/EC. 265 See Boeles et al., European Migration Law, p. 187–188. 261

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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 Article 12.266 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),267 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 of the provision 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.

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 potential withdrawal (see above Article 3 MN 6). Instead, withdrawal is only possible when Member States explicitly provide for this option in domestic laws, thereby activating the option established by 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)) 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. In 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). 14 Article 9(4)(2) entails the same outcome after six years 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 the rule in Article 9(1)(c) that relocation within the EU does not usually entail the loss of long-term resident 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’ in accordance with Article 9(4)(3) whose vague wording leaves Member States much discretion (see above MN 8). 13

266 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. 267 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 15 absence under Article 9(1)(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 area”’ after withdrawal or loss of long-term resident status.268 To achieve this it wanted to oblige Member States to issue a residence permit in the situation of today’s Article 9(1)(a), (c) or when an expulsion decision cannot be executed.269 The Council did not follow this proposal and included instead a vaguely formulated obligation (‘shall authorise’) which evades the reference to a residence permit270 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.271

Article 10 Procedural guarantees 1. Reasons shall be given for any decision rejecting 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 under the relevant national legislation. The notification shall specify the redress procedures available and the time within which he/she may act. 268

See Council doc. 10698/01 of 2 August 2001, p. 13. See Article 10(5) Commission Proposal, COM(2001) 127. 270 An ‘authorisation’ need not be a formal residence permit and may cover, in particular, scenarios such as the German ‘Duldung’ in accordance with Section 60a Residence Act (Aufenthaltsgesetz). 271 For stay of removal, see Articles 9, 14 Directive 2008/115/EC. 269

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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 principles of Union law, including human rights and limits to national procedural autonomy, 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.272 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.273 Notification in accordance with the second sentence does not explicitly require a written procedure, as the Commission had proposed,274 and explicitly accounts for differences between Member States (see above MN 1). 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 both administrative and judicial appeals through the open formulation ‘legal challenge.’275 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.276 1

Article 11 Equal treatment 1. 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; (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) tax benefits; 272 The situation has been different in some Member States until recently; see Groenendijk, Differential Treatment, p. 98–100. 273 See Hailbronner/Thym, Part A, MN 37. 274 See Article 11(1) Commission Proposal, COM(2001) 127. 275 See Council doc. 10698/01 of 2 August 2001, p. 14; it seems to me that this amendment was superfluous, since the obligation to apply to courts in the Commission Proposal would not have prevented Member States from additionally providing administrative redress beforehand. 276 See Hailbronner/Thym, Part A, MN 37.

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(f) 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 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; (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 1, points (b), (d), (e), (f) 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 members 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 university 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 paragraph 1. Member States may also decide to grant equal treatment with regard to areas not covered in paragraph 1. Content I. General Remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Equal Treatment beyond the Directive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Specific Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Employment (Article 11(1)(a), (3)(a)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Education and Vocational Training (Article 11(1)(b), (3)(b)) . . . . . . . . . . 3. Recognition of Diplomas (Article 11(1)(c)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Social Security, Assistance and Protection (Article 11(1)(d), (4)) . . . . . . 5. Tax Benefits (Article 11(1)(e)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Public Goods and Services, incl. Housing (Article 11(1)(f)). . . . . . . . . . . . . 7. Freedom of Association and Affiliation (Article 11(1)(g)). . . . . . . . . . . . . . . 8. Access to Entire Territory (Article 11(1)(h)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Beneficiaries of International Protection (Article 11(4a)). . . . . . . . . . . . . . . . . . . V. More Favourable National Provisions (Article 11(5)) . . . . . . . . . . . . . . . . . . . . . . .

1 7 12 12 17 21 23 29 31 33 35 37 38

I. General Remarks Article 11 is a central provision of great practical and conceptual importance. Equal 1 treatment featured prominently in the original promise by the Tampere European Council in October 1999 (see above Article 1 MN 8) and gained much attention during the legislative procedure when Member States insisted on a number of derogations in Thym

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today’s Article 11(2)–(4).277 More recently, a number of ECJ judgment concerned the provision and the Commission reported that it received many complaints by individuals about difficulties they are facing at domestic level.278 On the whole, one may conclude that compared to the original promise of equal treatment the degree of convergence achieved by the Directive amounts to a ‘comparable treatment’ in the fields covered by Article 11.279 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.280 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 crucial 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.281 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 Member States to restrict equal treatment to cases where the ‘registered or usual place of residence’ of the long-term resident of family members lies in the territory of the state concerned. This provision, sponsored by Greece,282 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.283 Various Member States have activated this option.284 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 re´sidence … habituel) in line with the established terminology of the Social Security Coordination Regulation.285 Given that Article 11 does not prevent the application of more generous supranational rules (see below MN 8), said Regulation (EC) No. 883/2004 may allow for the export of social security benefits under more generous conditions.286 4 As a matter of principle, the ECJ holds jurisdiction to test compatibility of exceptions enshrined in Article 11(2)–(4) with human rights,287 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 277

See See Council doc. 10698/01 of 2 August 2001, p. 15–18. See the Commission’s report on application, COM(2011) 585, p. 6 279 See Handoll, Directive 2003/109/EC, Article 1 MN 1. 280 See Peers et al., EU Immigration and Asylum Law Vol. 2, p. 309. 281 Contra Bell, ‘Civic Citizenship and Migrant Integration’, European Public Law 13 (2007), p. 311, 323–324. 282 See Halleskov, The Long-Term Residents Directive, p. 193. 283 See Hailbronner, Drittstaatsangeho ¨ rige, p. 165; and ter Steeg, Einwanderungskonzept, p. 383. 284 See the Commission’s report on application, COM(2011) 585, p. 6. 285 See Article 1(f) Regulation (EC) No. 883/2004 and related case law. 286 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 restricts special noncontributory benefits to the place of residence in its Article 70: it will be relevant mainly for benefits qualifying as social security within the meaning of the Regulation. 287 See ECJ, Association belge des Consommateurs Test-Achats ASBL et al., C-236/09, EU:C:2011:100 on Article 5(2) Anti-Discrimination Directive 2004/113/EC; and Bribosia, Politiques d’inte´gration, p. 69. 278

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be difficult to define the precise contours of social rights in the EU Charter (see below MN 28). This undisputed 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 9–11). 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 instance, with Article 12 Single Permit Directive 2011/98/EU or Article 14 Blue Card Directive 2009/50/EC.288 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 model of the closed nation state that is not suitable for past- and transnational constellations.289 It is understandable that the various exceptions enshrined in Article 11(2)–(4) were 6 met with criticism in the initial reaction of academic commentators in light of the political promise by the Tampere European Council.290 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 1 MN 19). Moreover, the limited scope 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.291

II. Equal Treatment beyond the Directive Recital 12 confirms that the Directive does not establish a general obligation of 7 equal treatment which is guaranteed, rather, ‘in a wide range of economic and social matters under the relevant conditions defined by this directive.’ Similarly, 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) and Member States relegated a general non-discrimination clause from the operative provisions of the Commission Proposal to non-binding Recital 5.292 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.293 Indeed, it is often stipulated that the limits of Article 11 may be 288 See De Bruycker, in: Verschueren et al. (ed), Where Do I Belong? (Intersentia, 2016), forthcoming; and Bell, ‘Civic Citizenship and Migrant Integration’, European Public Law 13 (2007), p. 311, 324–326. 289 See de Witte, Justice in the EU. The Emergence of Transnational Solidarity (OUP, 2015). 290 See Halleskov, The Long-Term Residents Directive, p. 9–10; Boelaert-Suominen, Directive 2003/109/ EC, p. 1050; and Groenendijk, Citizenship and Integration, p. 437. 291 See, in the context of Union citizenship, Thym, ‘Frontiers of EU Citizenship’, in: Kochenov (ed), EU Citizenship and Federalism. The Role of Rights (CUP, 2015), sect. 4.2 (forthcoming). 292 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 generals rules for third-country nationals but discrimination on other grounds such as gender, race or sexual orientation. 293 See Halleskov, The Long-Term Residents Directive, p. 189; Handoll, Directive 2003/109/EC, Article 11 MN 10; and Boeles et al., European Migration Law, p. 184.

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overcome under recourse to general principles,294 although this conclusion requires careful analysis in light of general ECJ case law on the scope of the EU Charter beyond the realm of immigration and asylum (see below MN 28). 8 In the Tu¨mer judgment, the ECJ indicated that it will take seriously the general scheme of the Long-Term Residents Directive with its limited equal treatment guarantee by stating in an obiter dictum that long-term resident status comes ‘with the attendant right to equal treatment in the areas covered by Article 11.’295 It concluded, furthermore, that the limited scope of Article 11 does not preclude other EU instruments ‘from conferring … rights on third-country nationals with a view to achieving the individual objectives of those acts.’296 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 11 Directive 2003/ 109/EC for former EU Blue Card holders in the Blue Card Directive (see below MN 23). The same applies to international agreements concluded by the EU and/or its Member States (see above Article 3 MN 22–25), including equal treatment guarantees in the Association Agreement with Turkey.297 Article 11 establishes a minimum level of protection generally allowing for more favourable provisions, either in national laws, supranational legislation or international agreements.298 9 It is a different question whether the EU Charter and general principles of Union law can be relied upon to invoke equal treatment in areas not covered by Article 11. It is beyond doubt that the ECJ holds jurisdiction to check compatibility of exceptions in Article 11(2)–(4) with human rights (see above MN 4). However, any application of the EU Charter to areas not covered by Article 11 depends on the interpretation of Article 51(1) EU Charter that Member States are bound ‘only when they are implementing Union law.’ The meaning of that provision has been (and still is) subject to intense debate for broader constitutional reasons.299 It is explained elsewhere that it applies to national measures falling within the scope of secondary legislation on the basis of a careful analysis, in line with more recent ECJ case law, of whether the factual background of the dispute and the domestic rules in question are covered by EU legislation ratione materiae, personae, temporis and loci. Whenever EU legislation does not apply to specific subject areas or categories of persons, the Charter doesn’t apply either.300 This rule extends to the Long-Term Residents Directive: national rules outside the personal or material scope of Directive 2003/109/EC cannot be assessed in light of the Charter. One may activate national constitutions and/or the ECHR instead, but the ECJ does not hold jurisdiction then.301 10 It is mentioned in the general introduction that the ECJ applied the restrictive reading of Article 51(1) EU Charter in judgments on immigration and asylum by distinguishing, for example, between border control activities (not) covered by the Schengen Borders Code.302 In a similar vein, it was careful to show, in Kamberaj, that an application of the Charter to Article 11(4) Directive 2003/109/EC and national implementing legislation was

294

See Peers et al., EU Immigration and Asylum Law Vol. 2, p. 311. ECJ, Tu¨mer, C-311/13, EU:C:2014:2337, para 33. 296 ECJ, ibid., 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). 297 See Thym, Part C I, MN 58–60; and Peers et al., EU Immigration and Asylum Law Vol. 2, p. 311. 298 Cf. Hailbronner/Thym, Part A, MN 28–33. 299 See above MN 6; and Hailbronner/Thym, Part A, MN 47. 300 See Hailbronner/Thym, Part A, MN 48. 301 See ECJ, Åkerberg Fransson, C-617/10, EU:C:2013:280, para 44. 302 See ECJ, Zakaria, C-23/12, EU:C:2013:24, paras 39–42; and Hailbronner/Thym, Part A, MN 48. 295

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covered by Article 51(1) EU Charter.303 It also rejected a French reference on family benefits in light of Article 11 Directive 2003/109/EC, since the case at hand was not sufficiently linked to Union law.304 By contrast, the conclusion in the P & S case (see above Article 5 MN 17–18) that a Dutch integration measure not affecting the acquisition or loss of long-term resident status fell within the scope of Union law and was subject, therefore, to ECJ jurisdiction was not explained305 – in contrast to the opinion of AG Szpunar.306 It seems, in particular, that the ECJ’s conclusion about the Dutch measure being ‘in accordance with Article 11(1) of Directive 2003/109/EC’307 does not imply that measured not covered by Article 11 should be assessed in light of equal treatment guarantees as a matter of Union law (see above MN 9). 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.308 Whenever careful analysis leads to the conclusion that the principle of equal 11 treatment in Article 21 EU 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 elsewhere 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 if so whether a distinction can be justified in a proportionate manner. The same extends to Article 14 ECHR which gained some relevance for social benefits, although the ECtHR has been careful in recent years to highlight the potential for differentiation.309 In cases of doubt, domestic courts should make a reference to the ECJ to determine whether the EU Charter is applicable and whether the treatment at issue amounts to inequality that cannot be justified.

III. Specific Guarantees 1. Employment (Article 11(1)(a), (3)(a)) Article 11(1)(a) gives long-term residents free access to employment and self- 12 employed 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 employers and pursue their fortune in all areas of economic activity under the same conditions applicable to nationals of the host state. Third-country 303

See ECJ, Kamberaj, C-571/10, EU:C:2012:233, paras 79–80. See ECJ, Mlamali, C-257/13, EU:C:2013:763 (only available in French). 305 That may be the main reason why ECJ, P & S, C-579/13, EU:C:2015:369 relied primarily on the principle of effet utile and did not apply human rights or the principle of proportionality. 306 Cf. AG Szpunar, ibid., EU:C:2015:39, paras 63–74 even if the arguments put forward were not necessarily conclusive; see Thym, ‘Towards a Contextual Conception of Social Integration in EU Immigration Law. Comments on P & S and K & A’, EJML 17 (2016), issue 1 (forthcoming); and Bribosia, Politiques d’inte´gration, p. 70–71. 307 ECJ, ibid., para 43. 308 See ECJ, ibid., 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 various fields 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 in limine before the substantive analysis of the scope of Union law for purpose of applying other general principles than equal treatment, in particular proportionality. 309 See Thym, Part C I, MN 37–42. 304

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nationals cannot be required to be in possession of a work permit.310 As an equal treatment guarantee, Article 11(1)(a) Directive 2003/109/EC does not contain a negative human right or fundamental freedom to attack 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). 13 Article 11(3)(a) allows Member States to ‘retain restrictions’ for activities reserved 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.311 It seems that ECJ case law on the dynamic character of standstill provisions under the Association Agreement with Turkey can be applied to Article 11(3)(a) Directive 2003/109/EC.312 Once Member States abolish a restriction which was compatible with Article 11(3)(a) originally, they cannot reintroduce it at a later point if we interpret the provision to establish a dynamic standstill clause.313 14 In line with the Commission Proposal, Article 11(1)(a) exempts activities from free access that ‘entail even occasional involvement in the exercise of public authority.’ This broad formulation presents an obvious 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.314 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’315 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.316 This case law cannot be extended to Directive 2003/109/EU. 15 Notwithstanding careful drafting, Article 11(1)(a) does not provide for carte blanche, since it takes up the ECJ’s formulation of ‘exercise of public authority’ (French: exercice de l’autorite´ publique; German: Ausu¨bung o¨ffentlicher Gewalt) instead of the broader ‘public service’ (French: administration publique; German: o¨ffentliche 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 11(1)(a) Directive 2003/ 109/EC. The provision rather embraces a substantive concept of public authority mirroring ECJ case law on Union citizens (see above MN 14), while ensuring through the formulation ‘even occasional involvement’ that stricter standards should be applied 310

See the Explanatory Memorandum to Article 12(1)(a) Commission Proposal, COM(2001) 127,

p. 21. 311 See Handoll, Directive 2003/109/EC, Article 11 MN 12; and Boelaert-Suominen, Directive 2003/109/ EC, p. 1026. 312 See Peers et al., EU Immigration and Asylum Law Vol. 2, p. 310. 313 Cf. for Turkish nationals ECJ, Demir, C-225/12, EU:C:2013:725; the dynamic character applies to new Member States as of the day of accession. 314 See Peers et al., EU Immigration and Asylum Law Vol. 2, p. 310; Bribosia, Politiques d’inte ´gration, p. 67; and Halleskov, 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, Citizenship and Integration, p. 438 does, since that judgment was delivered after the Commission Proposal and reflects settled case law. 315 ECJ, Reyners, 2/74, EU:C:1974:68, para 51. 316 See ECJ, Lawrie-Blum, 66/85, EU:C:1986:284 for teachers; ECJ, Reyners, 2/74, EU:C:1974:68 for lawyers; ECJ, Commission vs. Spain, C-114/97, EU:C:1998:519 for private security personnel; and ECJ, Commission vs. Germany, C-54/08, EU:C:2011:339 for notaries with certain public functions.

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to long-term residents than to Union citizens. The precise demarcation line remains imprecise, but one could argue, for instance, that teachers and lawyers are not excluded from Article 11(1)(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 in the public service, since participation of migrants in the civil service may promote integration and social cohesion.317 In addition to free labour market access, Article 11(1)(a) guarantees equal working 16 conditions in line with Article 15(2) EU Charter that may be used as a point of reference for interpretation.318 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.319 Conditions regarding dismissal and remuneration are mentioned by way of example.

2. Education and Vocational Training (Article 11(1)(b), (3)(b)) Article 11(1)(b) on education and vocational training, including study grants, was not subject to much debate during the legislative procedure, although the Council introduced an exception in Article 11(2) to prevent exportation of social benefits subject to the conditions discussed above (see MN 3) for long-term residents and family members living abroad, including 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). 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.320 This broad reading follows the general scheme and the objective of the Long-Term Residents Directive which, in contrast to Article 7(3) Regulation (EU) No. 492/2011 on free movement of workers, does not require a direct connection to employment.321 The explicit exception in Article 11(3)(b) that Member States may require proof of appropriate language proficiency or fulfilment 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 instead of negative 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.322 Equal treatment under Article 11(1)(b) extends to study grants ‘in accordance with national law.’ This explicit deference to domestic laws may pre-empt ECJ interfere with 317 See, 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’inte´gration, p. 67; and Bell, ‘Civic Citizenship and Migrant Integration’, European Public Law 13 (2007), p. 311, 322–323. 318 See Thym, Part C I, MN 34. 319 See the Explanatory Memorandum to Article 12(1)(a) Commission Proposal, COM(2001) 127, p. 21. 320 See ibid., p. 21. 321 See Halleskov, The Long-Term 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 Ch. 1968(II), p. 475) on which we have extensive case law. 322 See Halleskov, The Long-Term Residents Directive, p. 194.

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domestic legislation,323 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 general budget from the notion of study grants through the definition in the first sentence of Recital 15, cannot alter the scope of Article 11(1)(b).324 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.325

3. Recognition of Diplomas (Article 11(1)(c)) Under Article 11(1)(c) long-term residents enjoy equal treatment with nationals as regards recognition of professional diplomas, certificates and other qualifications. This guarantee of equal treatment with nationals does not incorporate the ECJ case law on the right of Union citizens on the recognition of professional qualifications under the fundamental freedoms of the single market326 into the Long-Term Residents Directive, since this case law emanates from the concept of restrictions to transnational economic activities (see above MN 12). In contrast to rules for Union citizens, Article 11(1)(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. 22 Since Article 11(1)(c) does not distinguish between qualification obtained inside 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.327 21

4. Social Security, Assistance and Protection (Article 11(1)(d), (4)) 23

Article 11(1)(d) is a crucial provision of great political and practical importance, since access to social benefits is politically sensitive terrain which, moreover, is bound for intricate legal problems of interpretation and application due to the complexity of domestic social law. It is important, therefore, to rationalise the limits of the provision and to understand that its terminology is to be construed autonomously, as confirmed by the ECJ. As mentioned before, the Council introduced an exception in Article 11(2) to prevent exportation of benefits for long-term residents and family members living abroad whose relevance depends on domestic law (see above MN 3). This option of non-exportation does not apply to long-term residents who held an EU Blue Card previously (see above Article 8 MN 7) subject to the provisions of Directive 2009/50/EC guaranteeing the payment of statutory pensions when former EU Blue Card holders move to a third state.328 323

See Handoll, Directive 2003/109/EC, Article 11 MN 18. See Hailbronner, Drittstaatsangeho¨rige, p. 165. 325 See Halleskov, The Long-Term Residents Directive, p. 195. 326 Cf. ECJ, Vlassopoulou, C-340/89, EU:C:1991:193; and ECJ, Morgenbesser, C-313/01, EU:C:2003:612. 327 See Article 2(1) Directive 2005/36/EC (OJ 2005 L 255/22); and Article 1(2)(a) Directive 98/5/EC (OJ 1998 L 77/36). 328 See Articles 16(6) and 14(1)(f) Blue Card Directive 2009/50/EC. 324

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The drafting history shows that the thematic range Article 11(1)(b) is limited and 24 does not cover all kinds of social benefits. 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 budget and broader ‘social benefits.’329 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.330 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). Besides the deletion of the term ‘social benefits’, the Council added that Member States 25 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 an interpretation of the terminology used under reference to ECJ case law on similar terminology in the Social Security Coordination Regulation.331 This was confirmed by the ECJ in Kamberaj: when the legislature ‘has made an express reference to national law, as in Article 11(1)(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 Member States concerning the meaning and exact scope of the concepts in question.’332 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). Member States enjoy wide discretion, therefore, when deciding which specific benefits 26 qualify as ‘social security’ and ‘social assistance’, while the term ‘social protection’ seems to be largely identical with social assistance.333 Nevertheless, the wide discretion may have limits, in extreme cases at least, for instance when a Member State tried 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 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 8), 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. 329

See Article 12(1)(d)–(f) Commission Proposal, COM(2001) 127. See the Explanatory Memorandum attached to the Commission Proposal, COM(2001) 127, p. 22 referring to settled case law of the ECJ on Article 7(2) Regulation (EEC) No. 1612/68 (OJ English Special Edition Ser. I Ch. 1968(II), 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 Long-Term Residents Directive, p. 198. 331 See Halleskov, ibid., p. 198–199. 332 ECJ, Kamberaj, C-571/10, EU:C:2012:233, para 77; see also Boeles et al., 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. 333 Cf. Article 12(1)(d) Commission Proposal, COM(2001) 127 listing ‘social assistance’ as a subcategory of ‘social protection’ together with ‘health-care.’ 330

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The Council introduced an exception in Article 11(4) that Member States may 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.334 Apart from that, Member States enjoy wide discretion to define what areas are covered by the exception. 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.’335 28 In Kamberaj, the ECJ emphasised that the reference to domestic law for defining what is covered by the term social assistance (see above MN 25) does not preclude application of general principles, including human rights.336 This entails that Member States act within the scope of Union law when limiting equal treatment to core benefits (see above MN 9–10). On this basis, the ECJ applied Article 34 EU 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.337 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. This conclusion extends to social guarantees specifically given that the precise meaning of the social rights and principles enshrined in the EU Charter is highly controversial and subject to intense debate irrespective of immigration law.338 27

5. Tax Benefits (Article 11(1)(e)) Article 11(1)(e) extends equal treatment to tax benefits without referring to domestic law for purposes of definition 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 11(1)(e).339 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), 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. 29

334

See Thym, Part C I, MN 38; and Boelaert-Suominen, Directive 2003/109/EC, p. 1027. ECJ, Kamberaj, C-571/10, EU:C:2012:233, para 91. 336 See ECJ, ibid., paras 78–80. 337 See ECJ, ibid., para 91; and De Vries, ‘Towards Integration and Equality for Third-Country Nationals?’, ELRev. 38 (2013), p. 248, 253–254. 338 See Hailbronner/Thym, Part A, MN 49. 339 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(II), p. 475) on freedom of movement for workers. 335

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6. Public Goods and Services, incl. Housing (Article 11(1)(f)) Long-term residents are to enjoy equal treatment with nationals as regards access to 31 goods and services made available to the public, including procedures for obtaining housing. Equal access in these domain is crucial for successful integration policies towards migrants and to support social cohesion.340 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), although this exception may not have much practical impact for public goods and services that will usually concern only people living in a country. The equal treatment guarantee enshrined in Article 11(1)(f) does not require Member 32 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.341 The Council limited equal treatment to ‘procedures for obtaining housing’ instead of simply referring to ‘housing.’342 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.343 In contrast to rules on Union 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.344

7. Freedom of Association and Affiliation (Article 11(1)(g)) Under Article 11(1)(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 workers or employers. 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 7–9). 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). Article 11(1)(g) covers trade unions and chambers of commerce or any other 34 organisation related to work. Its 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.345 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).

340 See Common Basic Principles (CBP) No. 6 for immigrant integration, Council doc. 14615/04 of 19 November 2004, p. 21. 341 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. 342 Cf. Article 12(1)(g) Commission Proposal, COM(2001) 127. 343 Not all applications will have to be approved if housing is scarce. 344 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. 345 See the Commission in Council doc. 10698/01 of 2 August 2001, p. 18.

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8. Access to Entire Territory (Article 11(1)(h)) Article 11(1)(h) guarantees equal treatment as regards free access to the entire 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.346 Article 11(1)(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). 36 The exception that equal treatment shall be guaranteed ‘within the limits provided for 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.347 35

IV. Beneficiaries of International Protection (Article 11(4a)) 37

Article 11(4a) exempts beneficiaries of international protection from the exceptions laid down in Article 11(3), (4) in so far as there are more generous guarantees in the Asylum Qualification Directive.348 This provision appears declaratory in nature in light of ECJ case law that the Long-Term Residents Directive does not preclude other EU legislation from conferring more rights (see above MN 8). 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).349

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 11(1)(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 8). 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 7–11). 39 One additional area outside the scope of the Directive where Member States may want to grant equal treatment concerns voting rights, at least at municipal level. The Council had rejected an amendment proposed by the European Parliament in this respect,350 but different Member States allow for varied degrees of political participa38

346 The EU 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) EU Charter. 347 The restriction seems to go back to concerns voiced by Spain and Sweden; see Council doc. 10698/ 01 of 2 August 2001, p. 18. 348 See Peers, Transfer of International Protection, p. 549. 349 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. 350 See the Amendment No. 35 proposed by the European Parliament, EP doc. P5_TA(2002)0030 of 5 February 2002 (OJ 2002 C 284 E/94).

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tion.351 Others may reserve political participation to nationals, while at the same time allowing long-term residents to acquire nationality more easily, 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 1 MN 18–20).

Article 12 Protection against expulsion 1. Member States may take a decision to expel a long-term resident solely where he/she constitutes an actual and sufficiently serious threat to public policy or public security. 2. The decision referred to in paragraph 1 shall not be founded on economic considerations. 3. Before taking a decision to expel a long-term resident, Member States 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. 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 members. 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. 5. 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.

General Remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Expulsion on Grounds of Public Policy or Security (Article 12(1)–(3)). . 2 Beneficiaries of International Protection (Article 12(3a)–(3c), (6)) . . . . . . . 11 Judicial Redress and Legal Aid (Article 12(4)–(5)) . . . . . . . . . . . . . . . . . . . . . . . . . . 15

351 See Slama, ‘Ressortissants des pays tiers le ´galement installe´s: possibles mais improbables citoyens’, in: Gauthier/Gautier (eds), L’immigration le´gale: aspects de droits europe´ens (Bruylant, 2011), p. 153–174; and Groenendijk/Guild, Converging Criteria, p. 44–45.

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I. General Remarks 1

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 the 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, although actual deportation must comply 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.

II. Expulsion on Grounds of Public Policy or Security (Article 12(1)–(3)) 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 1 MN 8, 15).352 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’353 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 explanation 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 and the express limitation that personal conduct of long-term residents should not be considered if Member States did not take severe enforcement measures against their own nationals in similar scenarios.354 These changes were meant to signal 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). 3 It is explained in the context of Article 6 that there is settled ECJ case law on (1) the abstract interpretation of the terms ‘public policy’ and ‘public security’ and (2) the application of these standards to the free movement of Union citizens. It is argued, furthermore, that the abstract principles of the ECJ case law can be applied to the Long-Term Residents Directive, while acknowledging that we may have to distinguish between long-term residents and Union citizens in their application to specific scenarios in light of differences in the wording, the drafting history, the general scheme, the objectives and the constitutional context (see above Article 6 MN 3–8). In doing so, we have to take due account of the specificities of Article 12(1) which employs stricter language than Article 6(1) in so far as it requires threats to public policy or security to be ‘actual and sufficiently serious.’ 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 2

352 See Papagianni, Institutional and Policy Dynamics of EU Migration Law (Martinus Nijhoff, 2006), p. 296–297; and Wiesbrock, Legal Migration, p. 45. 353 Recital 11 Commission Proposal, COM(2001) 127. 354 Council doc. 10698/01 of 2 August 2001, p. 20 lists French and German resistance to Article 13(2) Commission Proposal, COM(2001) 127.

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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 policy.355 It is in this area of discretion where we may come to differentiated solutions for long-term residents, also considering that the ECJ justified the restrictive interpretation of the public policy exception for Union citizens by the constitutional significance of free movement and Union citizenship which both do not extend to third-country nationals (see above Article 6 MN 6, 8). It is sometimes said that the ‘disappointing’356 outcome of the legislative process may be 5 rectified under recourse to general principles of Union law applying to immigration and asylum legislation.357 We should be careful, however, not to overstate the potential of general principles in ‘correcting’ legislative choices given that the general principles of mentioned in this context, such as case law on Union citizens, the status of Turkish nationals or human rights,358 do not necessarily mandate full synchronisation of the public policy and security exception in Article 6, 12 Directive 2003/109/EC with rules on Union citizens (see above Article 6 MN 3–8). That is not to say that no intermediate solution can be found if we take settled ECJ case law as starting point and distinguish between longterm residents and Union citizenship in its application to specific scenarios.359 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.360 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 may become relevant in combination with the ensuing requirement of the threat being ‘actual’, since it can be argued that a sufficiently serious criminal conviction in the past amounts to an actual threat emanating from a person even if his/her personal conduct after the conviction does not justify an identical conclusion.361 In light of the drafting history and Recital 8 (see above Article 6 MN 11), past criminal convictions are covered by the public policy or security exception even if an expulsion will always require a balancing exercise taking into account the factors listed in Article 12(3) (see below MN 9–10). This balancing exercise will have to take account that the loss of long-term 355 See, by way of example, ECJ, Van Duyn, 41/74, EU:C:1974:133, para 18 for EU citizens; and, in the context of immigration and asylum, ECJ, T., C-373/13, EU:C:2015:413, para 77. 356 Acosta, The Long-Term Residence Status, p. 137. 357 Generally, see Hailbronner/Thym, Part A, MN 21–27. 358 See Acosta Arcarazo, Civic Citizenship Reintroduced?, p. 214–216; Peers et al., EU Immigration and Asylum Law Vol. 2, p. 313–314; and Peers, Implementing Equality?, p. 452–453. 359 See also Hailbronner, Drittstaatsangeho ¨ rige, p. 166. 360 Article 13(3) Commission Proposal, COM(2001) 127 reiterated today’s Article 27(2) Citizenship Directive 2004/38/EC and corresponding rulers in the former Article 3(2) Directive 64/221/EEC (OJ English Special Edn. Ser. I Vol. 1963/64, p. 117–119). 361 This concept is discussed controversially in German immigration law under the heading of ‘Generalpra¨vention’; see, in the context of Directive 2003/109/EC, the different positions put forward by Marx, ‘Die Verdeutschung der EU-Richtlinien zum Aufenthalts- und Asylrecht’, Informationsbrief Ausla¨nderrecht 2007, p. 413, 417–418; and Discher, ‘Vor §§ 53 et seqq. AufenthG’, in: Gemeinschaftskommentar AufenthG (looseleaf, 16th edn, Luchterhand, 2007), paras 637–638; Welte, ‘Nochmals: Der besondere Ausweisungsschutz nach der Daueraufenthaltsrichtlinie-EU’, Informationsbrief Ausla¨nderrecht 2007, p. 265–266; and Lu¨dke, ‘Der besondere Ausweisungsschutz nach der Daueraufenthaltsrichtlinie-EU’, ibid., p. 177–178.

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resident status as a result of expulsion weighs more heavily than the initial rejection (see above Article 6 MN 12) and that, therefore, criminal convictions will have to concern severe criminality to justify an expulsion. An entry into the Schengen Information System based on past behaviour in another Member States is not sufficient to conclude that a person constitutes a threat to public policy or security,362 since Member States are under an obligation to assess the situation anew when deciding on whether to proceed with expulsion.363 An entry into the SIS may be an indicator for Member States, however, to scrutinise whether the person concerned constitutes a threat and they may take into account past behaviour which led to the SIS entry when doing so (see above MN 6). The additional obligation in Article 12(2) not to found a refusal on economic considerations will not usually have much relevance in practice for the reasons presented in the context of the public policy exception in Article 6 (see above Article 6 MN 13). Article 12(3) shows that a expulsion decision cannot be based on a quasi-automatic application of domestic rules and must be based, instead, on an assessment of the individual case.364 This appraisal of the individual case will have to take into account the threat to public policy or security (see above MN 4, 6–8) together with countervailing private interests of the long-term resident listed in Article 12(3): duration of residence, age, consequences for the person and family members, links with countries of origin and residence. Recital 16 confirms that these criteria flow from decisions of the European Court of Human Rights,365 which has established Article 8 as a safety net against the expulsion of long-term residents since the early 1990s.366 Against this background, the reference to ECtHR case law seems not to be exhaustive: additional criteria established in the case law of the Court in Strasbourg can be considered. More specifically, the ECtHR developed a set of criteria guiding the balancing of countervailing public and private interests: length of the stay; solidity of social, cultural and family ties with the country of residence and origin; age, best interests and wellbeing of children; nature and seriousness of potential criminal offences; time elapsed since an offence and the conduct during that period; the applicant’s family situation and the nationalities of the persons concerned; whether spouses knew about the offence or an unstable immigration status when they entered into the relationship; and any difficulties which the spouse is likely to encounter in the country of origin.367 It should be noted that the ECtHR has repeatedly emphasised that there is no absolute protection against expulsion and that family members can be separated, especially after serious crimes.368 In recent years, it highlighted the significance of social and cultural ties to the host country, including language skills and labour market participation.369 362

See Peers, Implementing Equality?, p. 453. This was confirmed in relation to third-country national family members of Union citizens by ECJ, Commission vs. Spain, C-503/03, EU:C:2006:74, paras 32–38. 364 See also Acosta, The Long-Term Residence Status, p. 123; and Marx, ‘Aktuelle Entwicklungen im gemeinschaftsrechtlichen Ausweisungsschutz’, Zeitschrift fu¨r Ausla¨nderrecht 2007, p. 142, 149. 365 See also the Explanatory Memorandum in the Commission Proposal, COM(2001) 127, p. 24; Boelaert-Suominen, Directive 2003/109/EC, p. 1027; and Acosta, The Long-Term Residence Status, p. 123–124. 366 See Thym, Part C I, MN 54–55. 367 Settled case law since ECtHR, judgment of 2 August 2001, No. 54273/00, Boultif v. Switzerland, ¨ ner v. the Netherlands, paras 57– para 48 with ECtHR, judgment of 18 October 2006 (GC), No. 46410/99, U 58 and ECtHR, Nunez, ibid., para 84 specifying the best interests of children and the solidity of family ties as sub-criteria; ECtHR, judgment of 23 June 2008 (GC), No. 1638/03, Maslov v. Austria, para 71 added the solidity of social, cultural and family ties with the host country and the country of origin. 368 See Thym, Part C I, MN 53, 55. 369 See Thym, Residence as de facto Citizenship?, p. 106, 123–126, 139–143. 363

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III. Beneficiaries of International Protection (Article 12(3a)–(3c), (6)) Article 12(3a)–(3c) were introduced by Directive 2011/51/EU extending the scope of the Long-Term Residents Directive to beneficiaries of international protection (see above Article 1 MN 13). They concern a rather special scenario that will be rare in practice. Article 12(3a)–(3c) cover only situations in which a person received international protection in a first Member State where he/she lived for at least five years before receiving a long-term residents status under the Directive (without long-term resident status in the first Member State, there will be no remark in the EU residence permit according to Article 8(4) concerning another state than the second state). After this initial period of residence of at least five years in a first Member State, the migrant relocates to a second Member State, most probably in accordance with Articles 14–23 of the Directive. In the second Member State the person will have to live for at least another five years for Article 12(3a)–(3c) to apply, since these provisions presuppose the acquisition of long-term resident status in the second Member State. Article 12(3a)–(3c) apply only after long-term resident status was obtained in the second Member State for as long as international protection is not transferred or granted by the second Member State in accordance with Article 19a. Denial or withdrawal of other residence permits in the second Member State short of long-term resident status are covered by Articles 17, 22 Directive 2003/109/EC, which contain a special rule for beneficiaries of international protection in Article 22(3a) (see below Article 22 MN 35). In this rather specific scenario, Article 12(3a)–(3c) are meant to prevent a violation of the principle of non-refoulement, while ensuring, at the same time, that the second Member State retains the power to expel long-term residents, even if they are beneficiaries of international protection. This rather complex construction reaffirms that the EU asylum status remains attached to a specific Member State (see Article 8 MN 8). More specifically, Article 12(3a) establishes a procedure for determining whether the person still is a beneficiary of international protection. If that is not the case, regular rules on expulsions apply. Article 12(3b) concerns scenarios in which international protection has not been revoked: in this case, the first Member State shall take the person back. It will depend on the circumstances of the individual case whether there are limits under ‘applicable Union or national law and … the principle of family unity.’ While the latter refers to Article 8 ECHR and Article 7 EU Charter,370 the applicable Union law may include the Return Directive 2008/115/EU whose Article 6(2) can cover the above-mentioned scenario. Article 12(3c) allows the second state to return the person to a third state whenever the person constitutes a particularly serious threat in accordance with Article 21(2) Asylum Qualification Directive371 (see Battjes, Directive 2011/95/EU, Article 21 MN 8–11). Article 12(6) ensures compliance with the principle of non-refoulement also in scenarios not covered by Article 12(3a)–(3c). The open formulation used in Article 21(1) Asylum Qualification Directive372 covers various guarantees of non-refoulement, includ-

370

See Thym, Part C I, MN 52–55. Article 21(2) Asylum Qualification Directive 2011/95/EU is identical with Article 21(2) of the former Asylum Qualification Directive 2004/83/EC mentioned in the text. 372 Article 21(2) Asylum Qualification Directive 2011/95/EU states in accordance with Article 21(2) of the former Asylum Qualification Directive 2004/83/EC mentioned in the text: ‘Member State shall respect the principle of non-refoulement in accordance with the international obligations.’ 371

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ing Article 3 ECHR and other international documents,373 and is not limited to international protection in the meaning of the Asylum Qualification Directive.

IV. Judicial Redress and Legal Aid (Article 12(4)–(5)) Article 12(4) ensures that Member States make a judicial redress procedure available against expulsion decisions, mirroring the express for rejections in Article 10(2). Both provisions are largely declaratory and must be interpreted in light of Article 47 EU Charter on effective judicial review (see above Article 10 MN 3). Article 47 EU Charter and general principles of Union law do not necessarily require suspensive effect in all circumstances and may permit emergency procedures, which, therefore, Article 12(4) does not generally prescribe or prohibit, since the Council rejected a Commission Proposal to the contrary.374 16 Article 12(5) contains an equal treatment guarantee on access to legal aid in accordance with domestic rules applicable to nationals. An amendment to provide long-term residents with a mandatory interpreter was rejected by the Council,375 which is not surprising given that it considered long-term resident status to be an expression of integration that may be demonstrated by means of language skills of the host country. 15

Article 13 More favourable national provisions Member States may issue residence permits of permanent or unlimited validity on terms that are more favourable than those laid down by this Directive. Such residence permits shall not confer the right of residence in the other Member States as provided by Chapter III of this Directive. The official title of Article 13 with its reference to ‘more favourable national provisions’ is misleading, since the provision only refers to domestic residence permits other than long-term resident status under the Directive. Recital 17 shows that Article 13 is meant to shield domestic permits of permanent or unlimited validity, which various Member State hand out in accordance with national rules. It does not allow Member States to deviate from the provisions of Directive 2003/109/EC. 2 According to the ECJ in the Tahir judgment ‘it is clear from the unequivocal wording of the second sentence’376 that Article 13 does not contain a general provision on more favourable national rules, but concerns the co-existence of distinct domestic permits in parallel to long-term resident status under the Directive. This distinction between domestic permits and the EU status has the purpose of promoting mutual confidence between Member States in situations of intra-EU relocation in accordance with Articles 14–23.377 The immediate consequence of this distinction is that holders of 1

373 On the interaction with the Asylum Qualification Directive, see Hailbronner/Thym, Part D I, MN 21, 55–61. 374 See Council doc. 10698/01 of 2 August 2001, p. 21 concerning Article 13(5), (7) Commission Proposal, COM(2001) 127. 375 Cf. the Amendment No. 40 proposed by the European Parliament, EP doc. P5_TA(2002)0030 of 5 February 2002 (OJ 2002 C 284 E/94). 376 ECJ, Tahir, C-469/13, EU:C:2014:2094, para 41; similarly, Skordas, Immigration and the Market, p. 207; and Halleskov, The Long-Term Residents Directive, p. 187. 377 ECJ, ibid., para 40.

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domestic residence permits cannot rely on the Long-Term Residents Directive whose use of the term ‘long-term resident’ only relates to those holding a status under the Directive (see above Article 2 MN 3). Member States are free to regulate the contours of the domestic status, for instance the length of qualification periods. Directive 2003/109/ EC does not limit their discretion. If Article 13 does not generally allow for more favourable national provisions, 3 contrary to its misleading title, it has to be determined on the basis of other provisions whether and if so to what extent more favourable national provisions are permissible in areas covered by the Directive. It is explained elsewhere that this usually requires an analysis of the provision in question to ascertain whether it is mandatory or allows for more generous domestic rules.378 In relation to Directive 2003/109/EC, the ECJ found in the above-mentioned Tahir judgment that the five-year qualification period in Article 4 is mandatory and that Member States cannot provide for more generous domestic rules.379 Article 3(3) contains an opening clause for certain international agreements (see above Article 3 MN 22–25). In practice, some Member States, such as Germany, often hand out a domestic 4 permanent resident status unless third-country nationals explicitly ask for the EU status.380 If it was ascertained that domestic immigration authorities actively promoted the domestic permit instead of the EU status,381 this would undermine the effet utile of the Long-Term Residents Directive, in particular if Member States are not willing to grant two statuses in parallel.382 Whether this is the case, will ultimately depend on the domestic practice and the level of proof the Commission could present in potential infringement proceedings. Moreover, Member States are obliged to ensure that the domestic permit can be readily distinguished from the EU status to avoid confusion.383

CHAPTER III RESIDENCE IN THE OTHER MEMBER STATES Article 14 Principle 1. A long-term resident shall acquire the right to reside in the territory of Member States other than the one which granted him/her the long-term residence status, for a period exceeding three months, provided that the conditions set out in this chapter are met. 2. A long-term resident may reside in a second Member State on the following grounds: (a) exercise of an economic activity in an employed or self-employed capacity; (b) pursuit of studies or vocational training; (c) other purposes. 378

See Hailbronner/Thym, Part A, MN 28–33. See ECJ, Tahir, C-469/13, EU:C:2014:2094, paras 26–37. 380 See the Commission’s report on application, COM(2011) 585, p. 7; and above Article 1 MN 9. 381 The reasons for doing so need not be disrespect for EU law; it might be the force of habit, since officials are more familiar with the traditional title; since the latter might, moreover, be subject to more generously qualification conditions in accordance with Article 13, this practice might also be in the interest of third-country nationals if it is easier to obtain the domestic status. 382 See Peers et al., EU Immigration and Asylum Law Vol. 2, p. 329–330. 383 For asylum under domestic law and EU refugee status, see ECJ, B., C-57/09 & 101/09, EU:C:2010:661, paras 113–121; and Thym, Part C I, MN 15. 379

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3. In cases of an economic activity in an employed or self-employed capacity referred to in paragraph 2(a), Member States may examine the situation of their labour market and apply their national procedures regarding the requirements for, respectively, filling a vacancy, or for exercising such activities. For reasons of labour market policy, Member States may give preference to Union citizens, to third-country nationals, when provided for by Community legislation, as well as to third-country nationals who reside legally and receive unemployment benefits in the Member State concerned. 4. By way of derogation from the provisions of paragraph 1, Member States may limit the total number of persons entitled to be granted right of residence, provided that such limitations are already set out for the admission of third-country nationals in the existing legislation at the time of the adoption of this Directive. 5. This chapter does not concern the residence of long-term residents in the territory of the Member States: (a) as employed workers posted by a service provider for the purposes of crossborder provision of services; (b) as providers of cross-border services. Member States may decide, in accordance with national law, the conditions under which long-term residents who wish to move to a second Member State with a view to exercising an economic activity as seasonal workers may reside in that Member State. Cross-border workers may also be subject to specific provisions of national law. 6. This Chapter is without prejudice to the relevant Community legislation on social security with regard to third-country nationals. Content I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Right of Residence (Article 14(1), (4)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Grounds for Residence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Economic Activities (Article 14(2)(a), (3), (5)) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Studies and Vocational Training (Article 14(2)(b)) . . . . . . . . . . . . . . . . . . . . . . 3. Other Purposes (Article 14(2)(c)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Social Security Legislation (Article 14(6)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 5 10 11 17 18 19

I. General remarks Chapter III of the Directive concerns the right of residence in other Member States once long-term resident status has been acquired in a first Member State. The acquisition, exercise and loss of the right is not automatic, but may be subject to a number of substantive and procedural requirements laid down in Articles 14–23. Their analysis may build upon the description of similar provisions for the acquisition of longterm resident status in the first Member State enshrined in Articles 3–13. Throughout the Directive, the term ‘first Member State’ refers to the state in which long-term resident status was acquired first, while the term ‘second Member State’ means the state where residence is taken up later on the basis of Articles 14–23 (see above Article 2 MN 4). 2 Mobility within the EU was considered a central novelty brought about by the Directive, reflecting the general commitment of the EU to attain ‘in internal market as an area in which the free movement of persons is ensured,’384 while also constituting ‘a major factor of mobility, notably on the Union’s employment market.’385 Academic 1

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Recital 18 replicating Article 26(1) TFEU. Again, Recital 18.

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commentators voiced much criticism of amendments brought about during the legislative procedure rendering mobility within the EU subject to a number of far-reaching caveats.386 The Council was criticised, in particular, for introducing a number of restrictions for economic purposes in Article 14(3), (4) highlighting continued fractures in the construction of the internal market with a limited integration of employment markets.387 Notwithstanding these limitations, transnational mobility for non-nationals constitutes a novelty value for European immigration law,388 which was taken up in many instruments on immigration adopted after Directive 2003/109/EC and discussed in this commentary. It is explained elsewhere that the mobility of third-country nationals within the EU 3 must be distinguished from Treaty-based rights to free movement for Union citizens, since the latter have a constitutional status the EU legislature is bound to respect. By contrast, statutory rules on free movement for third-country nationals are subject to legislative discretion and it is, therefore, the choice of the legislature to decide about the contours of free movement rights, as confirmed by Article 45(2) EU Charter.389 Statistical data show that few people use the free movement guarantees under 4 Chapter III of the Long-Term Residents Directive.390 This limited practical relevance is attributed to the limits laid down in EU legislation by some,391 although it can be argued that the situation may also reflect a lack of demand on the side of third-country nationals. Let’s assume that a foreigner has been living in a country for at least five years and ‘has put down roots [there]’ (Recital 6), among others by learning the local language and finding a job. Do we really expect that person enthusiastically to aspire relocation to another Member State where he would often have to learn another language? In such scenarios, many people might prefer remaining in the country they had chosen as their new home as a long-term resident, while the temptation of intraEuropean mobility might be higher for third-country nationals with a temporary resident permit, such as students or researchers.

II. Right of Residence (Article 14(1), (4)) During the legislative procedure, it was discussed whether the acquisition of the right 5 of residence in a second Member State should be automatic. The Council rejected a Commission Proposal in this regard by inserting, among other things, in the wording of Article 14(1) the formulation that long-term residents ‘shall acquire the right to reside … provided that the conditions set out in this chapter are met.’ Moreover, Articles 19 and 20 lay down an application procedure allowing Member States to assess whether the conditions are met, including judicial review in case of rejection.392 This confirms that residence rights in a second Member State are not acquired automatically 386

See Acosta, The Long-Term Residence Status, p. 144–145. See Iglesias Sa´nchez, Free Movement, p. 792–793, 798–799; Skordas, Immigration and the Market, p. 213–215; and Peers, Implementing Equality?, p. 459. 388 See Bast, Transnationale Migrationsverwaltung, p. 16–20; Hailbronner/Higgins, ‘General Rapporteur Report’, in: ibid. (eds), Migration and Asylum Law and Policy in the European Union. FIDE 2004 National Reports (CUP, 2004), p. 455, 466–467; ter Steeg, Einwanderungskonzept, p. 380; and Boelaert-Suominen, Directive 2003/109/EC, p. 1049. 389 See Thym, Part C I, MN 18, 35. 390 The Commission’s report on application, COM(2011) 585, p. 10 refers to less than 50 persons per Member State and year. 391 See Wiesbrock, ‘Free Movement of Third-Country Nationals in the European Union: The Illusion of Inclusion’, ELRev. 35 (2010), p. 455–475; and Sciortino/Pastore, ‘Immigration and European Immigration Policy: Myths and Reality’, in: Apap (ed), Justice and Home Affairs Law in the EU (Elgar, 2004), p. 191, 204. 392 See Handoll, Directive 2003/109/EC, Article 14 MN 10; Bast, Transnationale Migrationsverwaltung, p. 16–20; Hauschild, Einwanderungsrecht, p. 352. 387

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mirroring the rules for acquiring long-term resident status in a first Member State on the basis of Chapter II of the Directive (see above Article 7 MN 13). The wording of Article 14(1) shows that long-term residents have an individual right to be allowed residence in a second Member State (‘shall acquire’). Member States do not have a general discretion whether to grant the status if the conditions set out in the Directive are met, although a number of provisions grant Member States discretion how to design domestic rules in relation to individual applications (see above Article 7 MN 14). Various provisions of Chapter III can be directly applicable, although direct application should not be confused with automatic status acquisition (see above Article 4 MN 4). It should be noted that the Long-Term Residents Directive follows a model of gradual status change after relocation.393 Articles 14–22 do not provide for direct acquisition of long-term resident status in a second Member State. Instead, third-country nationals obtain a temporary but renewable residence permit first, which can be withdrawn in accordance with Article 22(1) when conditions are no longer fulfilled. After five years of legal residence, they can apply for long-term resident status in the second Member State in accordance with Article 23 and subject to the provisions in Articles 3–13. Beneficiaries of international protection are covered by residence rights in other Member States in accordance with Chapter III (see above Article 1 MN 13). However, the provisions do not bring about a transfer of protection status to the second Member State, since the first Member State remains responsible (see above Article 8 MN 8), although Member States may decide to transfer the status on the basis of rules and procedures which remain outside the scope of the Long-Term Residents Directive (see above Article 8 MN 11). A number of procedural and formal guarantees, including Article 19a, are meant to prevent disrespect for non-refoulement obligations. Article 14(4) contains a derogation allowing Member States to apply immigration quotas that existed at the time of the adoption of this Directive or the time of accession when new Member States join the European Union. Both the general formulation chosen and the drafting history suggest that Member States are free to apply either an abstract quota for all countries of origin or specific quotas for certain nationalities.394 It seems that Austria and Italy are the only countries to which the provision applies in practice,395 since Germany, which had originally asked for its insertion for a planned domestic quota, decided not to implement it for reasons not related to the Long-Term Residents Directive.396

III. Grounds for Residence 10

Article 14(2) links residence in a second Member State to a number of purposes which demonstrate that mobility on the basis of Chapter III is not, like long-term resident status in the first Member State, a generic status irrespective of grounds for residence. The three categories listed in Article 14(2) are mutually exclusive and exhaustive, although the third criterion leaves Member State very broad discretion to define the contours at domestic level. When the conditions for residence in the second Member States are no longer fulfilled, the residence permit may be withdrawn under Article 21(1)(b), while long-term resident status in the first Member States does not 393 See Thym, Part C I, MN 7; Iglesias Sa ´nchez, Free Movement, p. 799–800; and Skordas, Immigration and the Market, p. 209. 394 Contra Peers et al., EU Immigration and Asylum Law Vol. 2, p. 317. 395 See the Commission’s report on application, COM(2011) 585, p. 7. 396 See ter Steeg, Einwanderungskonzept, p. 384.

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depend on the continued fulfilment of the conditions for its acquisition (see above Article 9 MN 1).

1. Economic Activities (Article 14(2)(a), (3), (5)) Residence for exercising an economic activity in an employed or self-employed capacity was subject to considerable debate during the legislative process and the Council decided to introduce two exceptions in Article 14(3)(1), (2) in addition to the general caveat for immigration quotas (see above MN 9).397 Once Member States have allowed residence for economic purposes, the third-country national enjoys equal treatment as a matter of principle, although Member States may strict residence permits to certain economic sectors in accordance with Article 21(2). Article 15(4)(a)(i) confirms that Member States can make mobility subject to the prior conclusion of an employment contract. They are not obliged to grant residence to jobseekers mirroring rules for Union citizens. Article 14(3)(1) allows Member States to examine the situation of their labour market and to apply national procedures, thereby effectively allowing Member States to restrict the mobility of long-term residents to certain sectors of the economy, especially at times of high unemployment among the local workforce. The explicit deference to ‘national procedures’ indicates that Member States have wide discretion how these procedures and their outcome should look like. They may concern a general assessment of the labour market as a whole or be limited to certain sectors, although the second solution is preferable to prevent Article 14(3)(1) from rendering transnational mobility overly difficult. When the provision refers to ‘filling a vacancy’, it means employment, while ‘exercising such activities’ applies to the self-employed. Member States do not have carte blanche when assessing domestic labour markets, since they must not undermine the effet utile of the Directive even if they have wide discretion. The test can only be applied at the time of first authorisation only. It does not justify later withdrawal of a residence permit if the labour market assessment had not stood in the way of transnational mobility initially (see below Article 21 MN 4–5). Article 14(3)(2) concerns the principle of Union preference which effectively permits Member States to check whether a position can be filled by a member of the local workforce or other Union citizens before granting a residents permit on the basis of Articles 14–22 Directive 2003/109/EC. The wording emphasises that such labour market test may concern nationals, Union citizens and third-country nationals residing legally.398 An activation of the exception may concern both the prior availability of persons belonging to the domestic labour market and the conditions of employment. It can be applied only at the stage of initial applications and does not constitute a ground for later withdrawal (see below Article 21 MN 4–5). The Commission concluded in its Report on Application that mobility within the EU can be enhanced by not applying labour market tests.399 Article 14(5)(1) exempts posted workers and providers of cross-border services from the scope of the Directive in line with the Commission Proposal. To do so is a convincing solution, since posted workers are subject to the Posted Workers Directive 96/71/EC and cross-border service provision is temporary in character. By contrast, settlement for non-temporary service provision in a self-employed capacity is covered by Article 14(2)(a). 397

See Council doc. 11702/01 of 22 October 2001, p. 5–12. The inclusion of other Union citizens in the preference test responded to challenges in the context of enlargement to ten Member States in May 2004, which played a important role when Directive 2003/ 109/EC was drafted; see Iglesias Sa´nchez, Free Movement, p. 804. 399 See the Commission’s report on application, COM(2011) 585, p. 7. 398

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Article 14(5)(2) authorises Member States to apply the Directive to seasonal workers holding a long-term resident status in a first Member State, a category not covered by the Seasonal Workers Directive 2014/36/EU. The provision emphasises that Member States are free to lay down domestic rules concerning such scenarios.

2. Studies and Vocational Training (Article 14(2)(b)) 17

Article 14(2)(b) establishes a second ground for intra-European mobility: pursuit of studies or vocational training. This was not subject to intense debate during the legislative process and is not covered by the exceptions laid down in Article 14(3)(1), (2). The term ‘studies’ is stricter than the generic formulation ‘education’ used in Article 11(1)(a) and should be read to refer to students enrolled in tertiary education. This reading is confirmed by Article 15(4)(b) concerning documentation on enrolment in an accredited institution. The meaning of the term ‘vocational training’ is discussed above (see Article 11 MN 18). Once students have completed their studies, they can apply for a different residence permit in the second Member State, including for economic purposes in accordance with Article 14(2)(a), provided that they fulfil the requirements.

3. Other Purposes (Article 14(2)(c)) 18

The concept of ‘other purposes’ establishes a residual category and is to be broadly construed. It is not limited, in particular, to economic activities, since Recital 19 emphasises that intra-European mobility may be exercised ‘even to settle without exercising any form of economic activity.’ Member States have broad discretion when defining what other purposes they consider relevant and what conditions they deem suitable to apply in these scenarios. They may establish different categories of other purposes at national level specifying distinct conditions for diverse scenarios. These different purposes are all covered by the residual category of Article 14(2)(c).

IV. Social Security Legislation (Article 14(6)) 19

Article 14(6) does not concern the acquisition of a right to residence, but rather rights emanating from residence in another country, in particular in relation to employment. The provision is declaratory in nature and highlights that the provisions of the Social Security Coordination Regulation are not affected by Directive 2003/109/EC.400

Article 15 Conditions for residence in a second Member State 1. As soon as possible and no later than three months after entering the territory of the second Member State, the long-term resident shall apply to the competent authorities of that Member State for a residence permit. Member States may accept that the long-term resident submits the application for a residence permit to the competent authorities of the second Member State while still residing in the territory of the first Member State. 2. Member States may require the persons concerned to provide evidence that they have: 400 See Regulation (EC) No. 883/2004, which was extended to third-country nationals by Regulation (EU) No. 1231/2010 (OJ 2010 L 344/1).

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(a) stable and regular resources which are sufficient to maintain themselves and the members of their families, without recourse to the social assistance of the Member State concerned. For each of the categories referred to in Article 14(2), Member States shall evaluate these resources by reference to their nature and regularity and may take into account the level of minimum wages and pensions; (b) sickness insurance covering all risks in the second Member State normally covered for its own nationals in the Member State concerned. 3. Member States may require third-country nationals to comply with integration measures, in accordance with national law. This condition shall not apply where the third-country nationals concerned have been required to comply with integration conditions in order to be granted long-term resident status, in accordance with the provisions of Article 5(2). Without prejudice to the second subparagraph, the persons concerned may be required to attend language courses. 4. The application shall be accompanied by documentary evidence, to be determined by national law, that the persons concerned meets the relevant conditions, as well as by their long-term resident permit and a valid travel document or their certified copies. The evidence referred to in the first subparagraph may also include documentation with regard to appropriate accommodation. In particular: (a) in case of exercise of an economic activity the second Member State may require the persons concerned to provide evidence: (i) if they are in an employed capacity, that they have an employment contract, a statement by the employer that they are hired or a proposal for an employment contract, under the conditions provided for by national legislation. Member States shall determine which of the said forms of evidence is required; (ii) if they are in a self-employed capacity, that they have the appropriate funds which are needed, in accordance with national law, to exercise an economic activity in such capacity, presenting the necessary documents and permits; (b) in case of study or vocational training the second Member State may require the persons concerned to provide evidence of enrolment in an accredited establishment in order to pursue studies or vocational training. Content I. II. III. IV. V.

General Remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Application Requirement (Article 15(1)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Resources and Sickness Insurance (Article 15(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Integration Measures (Article 15(3)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Documentation Requirements (Article 15(4)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

I. General Remarks Article 15 concerns a number of procedural and substantive requirements for 1 residence in a second Member State complementing the conditions in Article 14. They emphasise that mobility within the EU can be made subject to a number of requirements after the acquisition of long-term resident status in a first Member State. There is, in contrast to Union citizens, no quasi-automatic right to free movement.

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II. Application Requirement (Article 15(1)) Article 15(1) confirms, in line with Article 14(1), that the right to residence in a second Member State is not acquired automatically (see above Article 14 MN 5). Nonetheless, the provision remain subject to some ambiguity, since Article 15(1)(1) obliges third-country nationals to apply ‘[a]s soon as possible and no later than three months after entering the territory’, thereby assuming that entry to the territory need not be authorised beforehand.401 This is confirmed by Article 15(1)(2) establishing application before entry as an option and not as the rule.402 This implicit permission to enter the territory without a visa reflects the right to temporary free travel within the Schengen area in accordance with the amended provisions of the Schengen Implementing Convention.403 3 To permit applications in a second Member State after entry in accordance with the rules on visa-free travel in the Schengen area, does not imply that the person concerned may pursue an economic activity during the first months without prior authorisation if doing so is not covered by the provisions of the Schengen acquis.404 Economic activity during the initial three-month period without authorisation would jeopardise the effet utile Article 14(3), (4) and contradict the constitutive nature of residence permits in situations of intra-European mobility (see above Article 14 MN 5, 8, 10–13). This interpretation is reaffirmed by the drafting history405 and the wording, since Article 15(1) stipulates that applications shall be made ‘[a]s soon as possible.’ Moreover, Article 21(1) guarantees equal treatment after having ‘received the residence permit provided for by Article 19’ and Article 22(1)(c) can be read to establish a ground for expulsion in these cases (see below Article 22 MN 8). 4 In practice, this means that third-country nationals may travel to a Member State on the basis of the Schengen acquis, for instance to find a job there. They can then apply for a residence permit, but they may not be economically active before an authorisation is issued unless the Schengen acquis allows them to do so.406 2

III. Resources and Sickness Insurance (Article 15(2)) Article 15(2) allows Member States to require applicants to show stable and regular resources together with sickness insurance mirroring corresponding rules for the initial acquisition of long-term resident status in a first Member State. The requirement is optional and should not be construed as a excessive restriction on free movement for the simple reason that the cost of living in the second Member State may be higher than in the first one, for instance in scenarios of relocation from Croatia to Sweden. Moreover, applicants may have lost their income which had provided the ground for the positive decision on their initial application in the first Member State. 6 The term ‘stable and regular resources’ should be interpreted in a similar way as in Article 5(1)(a) (see above Article 5 MN 2–8). Member States are free to apply different 5

401 See Iglesias Sa ´nchez, Free Movement, p. 803; and Boelaert-Suominen, Directive 2003/109/EC, p. 1030. 402 See Groenendijk, Citizenship and Integration, p. 436. 403 See Thym, Part B I, MN 18. 404 Contra Peers, Implementing Equality?, p. 455. 405 See the discussion of Article 16(1) Commission Proposal, in particular the comments by the Commission according to Council doc. 11702/01 of 22 October 2001, p. 5–6. 406 See Iglesias Sa ´nchez, Free Movement, p. 804.

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requirements for purposes of Articles 5(1)(a) and Article 15(2)(a) as long as they do not transgress their discretion afforded by both provisions.407 The concept of ‘sickness insurance’ should be given the same meaning as in 7 Article 5(1)(b) (see above Article 5 MN 9).

IV. Integration Measures (Article 15(3)) Article 15(3)(1) allows Member States to require third-country nationals to comply 8 with integration measures, thereby deliberately employing different terminology than in the case of Article 5(2) that refers to ‘integration conditions.’ Closer inspection of the drafting history shows that the use of the term ‘measures’ does not establish a condition allowing Member States to reject a residence permit. Article 15(3)(1) rather authorises Member States to oblige third-country nationals residing in their territory on the basis of Chapter III to comply with integration obligations during their stay, such as language courses.408 The ECJ confirmed that this distinction between integration conditions and measures is specific to Directive 2003/109/EC and cannot be applied to the Family Reunion Directive.409 As in the case of Article 5(2), the Long-Term Residents Directive refrained from 9 defining the concept of integration and Member States have wide discretion, therefore, to decide how to design their national laws (see above Article 5 MN 13 and Article 1 MN 16–17). Non-compliance with a domestic obligation to comply with integration measures can be sanctioned, for instance through fines,410 although sanctions must be applied proportionately (see above Article 5 MN 18–19). Non-compliance cannot result in status withdrawal, since Article 15(3) does not amount to a condition. Article 15(3)(2) exempts persons who have been subject to integration conditions in 10 the first Member State from integration measures in the second Member State, although they can be obliged to attend language courses in accordance with Article 15(3)(3) for the simple reason that the language spoken in the second Member State may be a different one than in the first Member State the third-country national had lived in before.

V. Documentation Requirements (Article 15(4)) Article 15(4) obliges Member States to approve applications only after the submission 11 of documentary evidence relating to the conditions for legal residence in the second Member State. Like in the case of Article 7(1), Member States benefit from discretion, although they may not erect insurmountable hurdles calling into question the effet utile of the Directive (see above Article 7 MN 4). The documentation listed in Article 15(4)(3) refers to the grounds of residence under Article 14(2) and is discussed in this context (see above Article 14 MN 10–16). When assessing the application, the second Member State is obliged to recognise the long-term resident permit issued by a first Member State whose officials may be consulted in cases of doubt or suspected fraud 407

Contra the Commission’s report on application, COM(2011) 585, p. 7. See Carrera, In Search of the Perfect Citizen? (Martinus Nijhoff, 2009), p. 179–180, 194–195; Groenendijk, Denizenship and Integration, p. 445; and Acosta, The Long-Term Residence Status, p. 157. 409 See ECJ, K & A, C-153/14, EU:C:2015:453, paras 45–48; and Hailbronner/Klarmann, Directive 2003/86/EC Article 7 MN 37–42. 410 It is a general principle of Union law that non-compliance with obligations should be subject to sanctions which are effective, dissuasive and proportionate; see ECJ, Pastoors & Trans-Cap, C-29/95, EU:C:1997:28, para 24. 408

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Part C III Art. 16

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through the contact points under Article 25.411 This does not affect the right of the second Member State to check compliance with the other conditions enshrined in Chapter III of the Directive. 12 The additional reference in Article 15(4)(2) to documentary evidence with regard to appropriate accommodation is subject to the same ambiguity as in Article 7(1)(2) and the arguments presented above apply accordingly (see Article 7 MN 10–12).

Article 16 Family members 1. When the long-term resident exercises his/her right of residence in a second Member State and when the family was already constituted in the first Member State, the members of his/her family, who fulfil the conditions referred to in Article 4(1) of Directive 2003/86/EC shall be authorised to accompany or to join the long-term resident. 2. When the long-term resident exercises his/her right of residence in a second Member State and when the family was already constituted in the first Member State, the members of his/her family, other than those referred to in Article 4(1) of Directive 2003/86/EC may be authorised to accompany or to join the long-term resident. 3. With respect to the submission of the application for a residence permit, the provisions of Article 15(1) apply. 4. The second Member State may require the family members concerned to present with their application for a residence permit: (a) their long-term resident’s EC residence permit or residence permit and a valid travel document or their certified copies; (b) evidence that they have resided as members of the family of the long-term resident in the first Member State; (c) evidence that they have stable and regular resources which are sufficient to maintain themselves without recourse to the social assistance of the Member State concerned or that the long-term resident has such resources and insurance for them, as well as sickness insurance covering all risks in the second Member State. Member States shall evaluate these resources by reference to their nature and regularity and may take into account the level of minimum wages and pensions. 5. Where the family was not already constituted in the first Member State, Directive 2003/86/EC shall apply. 1

Article 16 concerns the right of family members to accompany a long-term resident authorised to reside in a second Member State in accordance with Chapter III of the Directive. A broad distinction is drawn between family members where the family was already constituted in the first Member State and family members where it was not. Article 16 establishes specific rules for family members having lived with the long-term resident in the first Member State, while new applications for family reunion from members living elsewhere shall be governed by the Family Reunion Directive 2003/86/ EC according to Article 16(5). The generous regime for family members who resided with the sponsor in the first Member State has the aim ‘to preserve family unity and to avoid hindering the exercise of the long-term resident’s right of residence.’412 411 412

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See Groenendijk, Citizenship and Integration, p. 436. Recital 20.

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Art. 16

Long-Term Residents Directive 2003/109/EC

Part C III

Concerning family members having lived jointly with the long-term resident in the first Member State, Article 16(1), (2) distinguishes between spouses and minor children on the one hand and other relatives on the other hand. This distinction between the nuclear family and other relatives follows the definitions set out in Article 4(1) Family Reunification Directive 2003/86/EC.413 This definition is integrated into Article 16 Directive 2003/109/EC by means of explicit reference. While members of the nuclear family have an individual right (‘shall be authorised’) to reside in the second Member State, the latter benefits from discretion (‘may be authorised’) with regard to more distant relatives.414 The reference to Article 15(1) in Article 16(3) implies that neither category acquires the right to reside automatically, since it is subject to a constitutive authorisation procedure (see above Article 15 MN 2), although authorities of the second Member State can be obliged to grant a residence permit whenever the conditions are met (see above Article 14 MN 5–6). The documentation requirement in Article 16(4) emphasises that acquisition is not automatic. Residence rights on the basis of Article 16 can be lost in accordance with Article 22(1)(b) (see below Article 21 MN 7). In light of the unequivocal wording of Article 16(1), (2), it is irrelevant whether family members accompany long-term residents when they move to the second Member State or join them later. Similarly, the provision does not require family members to have held a specific residence permit in the first Member State. In particular, residence need not have been in conformity with Directive 2003/86/EC, since the reference to the Family Reunion Directive in Article 16(1), (2) concerns the definition of different categories of family members only – as the neutral formulation ‘already constituted in the first Member State’ reaffirms, i.e. residence permits for family members on the basis of domestic law are covered. The only exception concerns irregular residence, since the Long-Term Residents Directive should not be interpreted as an instrument for the regularisation of illegal stay. This interpretation is confirmed by the documentation requirement in Article 16(4)(a) referring to the submission of a residence permit. The distinction between the nuclear family (Article 16(1): ‘shall be authorised’) and other relatives entails that residence rights of the former cannot be made subject to substantive requirements not listed in Article 16(1). The reference to the Family Reunion Directive concerns the definition of family member in Article 4(1) and not conditions for family reunion in Articles 6–8 Directive 2003/86/EC. Family reunion for members of the nuclear family is easier under Article 16 Directive 2003/109/EC.415 The drafting history shows that the absence of substantive requirements for members of the nuclear family (see above MN 5) encompasses economic self-sufficiency, since the documentation requirement in Article 16(4)(c) on stable and regular resources does not establish an additional condition.416 Residence permits for family members under Article 16(1) are not subject to economic self-sufficiency. That does not render the documentation requirement superfluous, since Member States are authorised to require the long-term resident to have stable and regular resources both for himself and family members (see above Article 15 MN 6 and Article 5 MN 6). An application for a residence permit by family member for whom resources are insufficient may thus result in the

413

See Hailbronner/Are´valo, Directive 2003/86/EC Article 4 MN 4–16. The distinction was introduced by the Council; see Council doc. 11702/01 of 22 October 2001, p. 14. 415 See Peers, Implementing Equality?, p. 445–446. 416 See the Commission response to a question by Germany in Council doc. 11702/01 of 22 October 2001, p. 15 414

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rejection or withdrawal of the sponsor’s residence right.417 As a result, family members will not gain a right to residence either due to lack of sponsor. This may appear cumbersome, but underlines that family unity is a quasi-automatic and ancillary right for the nuclear family whose acquisition and loss follows the status of the long-term resident. 7 In contrast to the nuclear family, Member States have discretion to define the contours of residence rights of other relatives in accordance with Article 16(2) (‘may be authorised’). This discretion can be used in many ways, for instance to establish an economic self-sufficiency test or to require compliance with integration conditions. This interpretation is not affected by human rights, since Article 8 ECHR concentrates on the nuclear family and does not usually protect family unity with other relatives.418 However, Member States must not undermine the effet utile of Chapter III of the Directive and it can be argued that they are obliged to provide for an authorisation procedure considering applications by other family members bona fide but without an obligation to approve it despite their discretion.419 8 Two categories of family members are subject to specific rules in other EU instruments. Firstly, family members of Blue Card holders benefit from enhanced free movement rights in accordance with Article 15 Blue Card Directive 2009/50/EC.420 Secondly, beneficiaries of international protection are entitled to privileged treatment in the second Member State under the condition that the second state took responsibility for international protection, although it is not obliged to assume this protection under the Long-Term Residents Directive.421

Article 17 Public policy and public security 1. Member States may refuse applications for residence from long-term residents or their family members where the person concerned constitutes a threat to public policy or public security. When taking the relevant decision, the Member State shall consider the severity or type of offence against public policy or public security committed by the long-term resident or his/her family member(s), or the danger that emanates from the person concerned. 2. The decision referred to in paragraph 1 shall not be based on economic considerations. 1

Article 17 replicates Article 6 on the acquisition of long-term resident status in the first Member State. It concerns of the rejection of applications from both long-term residents and family members on grounds of public policy or public security. The meaning of both terms discussed in the context of Article 6 together with criteria for 417 When the applications by both the long-term resident and family member(s) are submitted in parallel, Member States may reject both applications; when the family member applies later, lack of resources may be a ground for withdrawal under Article 22(1)(b). 418 See the Grand Chamber of the ECtHR, judgment of 9 Oct 2003 (GC), No. 48321/99, Slivenko et al. v. Latvia, para 94. 419 Cf. the ECJ’s position on Article 3(2) Citizenship Directive 2004/38/EC in ECJ, Rahman et al., C-83/ 11, EU:C:2012:519. 420 See Peers et al., EU Immigration and Asylum Law Vol. 2, p. 323. 421 See above Article 8 MN 11; Article 23 Asylum Qualification Directive 2011/95/EU; and Peers, Transfer of International Protection, p. 551.

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Art. 18

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Part C III

their application to specific scenarios (see above Article 6 MN 2–13). These standards can be applied to Article 17. It should be noted that the balancing exercise inherent in any rejection on public 2 policy or public security grounds requires public authorities to assess the relative weight of private and public interests involved (see above Article 6 MN 12 and Article 12 MN 9–10). Doing so will usually entail a lesser weight of private interests in the context of Article 17, because applicants will not usually have spent much time in the second Member State, while they have a secure residence status in the first Member State on the basis of which they could easily return there to resume their private and family life.

Article 18 Public health 1. Member States may refuse applications for residence from long-term residents or their family members where the person concerned constitutes a threat to public health. 2. The only diseases that may justify a refusal to allow entry or the right of residence in the territory of the second Member State shall be the diseases as defined by the relevant applicable instruments of the World Health Organisation’s and such other infectious or contagious parasite-based diseases as are the subject of protective provisions in relation to nationals in the host country. Member States shall not introduce new more restrictive provisions or practices. 3. Diseases contracted after the first residence permit was issued in the second Member State shall not justify a refusal to renew the permit or expulsion from the territory. 4. A Member State may require a medical examination, for persons to whom this Directive applies, in order to certify that they do not suffer from any of the diseases referred to in paragraph 2. Such medical examinations, which may be free of charge, shall not be performed on a systematic basis. Article 18 builds upon the Commission Proposal with some minor modifications and 1 allows Member States to reject applications by long-term residents or family members on grounds of public health.422 The reference to definitions in relevant World Health Organisation instruments plus other infectious or contagious parasite-based diseases builds upon rules for Union citizens.423 Thus, Article 20 should be given the same meaning as corresponding provisions in the Citizenship Directive. It is evident from the wording of Article 18(3) that the provision only applies to 2 initial applications for residence permits. It does not justify a refusal to renew the permit or to expel the person from the territory. Moreover, medical examinations shall not be performed on a systematic basic according to Article 18(4).424

422

Cf. Article 20 Commission Proposal, COM(2001) 127. See the Explanatory Memorandum to Article 20 Commission Proposal, COM(2001) 127, p. 26–27 referring to today’s Article 29 Citizenship Directive 2004/38/EC that replaced the former Article 2(1) read in conjunction with the Annex to Directive 64/221/EEC (OJ English Special Edn. Ser. I Vol. 1963/64, p. 117–119). 424 The Commission’s report on application, COM(2011) 585, p. 8 reports problems with regard to some member states in this respect. 423

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Part C III Art. 19

Immigration

Article 19 Examination of applications and issue of a residence permit 1. The competent national authorities shall process applications within four months from the date that these have been lodged. If an application is not accompanied by the documentary evidence listed in Articles 15 and 16, or in exceptional circumstances linked with the complexity of the examination of the application, the time limit referred to in the first subparagraph may be extended for a period not exceeding three months. In such cases the competent national authorities shall inform the applicant thereof. 2. If the conditions provided for in Articles 14, 15 and 16 are met, then, subject to the provisions relating to public policy, public security and public health in Articles 17 and 18, the second Member State shall issue the long-term resident with a renewable residence permit. This residence permit shall, upon application, if required, be renewable on expiry. The second Member State shall inform the first Member State of its decision. 3. The second Member State shall issue members of the long-term resident’s family with renewable residence permits valid for the same period as the permit issued to the long-term resident. Article 19(1) builds upon Article 7 by establishing a general obligation to process applications for residence permits within four months except for exceptional circumstances. The thoughts presented in the context of Article 7 can be applied to Article 19 with the exception that the regular application period is shorter, since it covers four instead of six months (see above Article 7 MN 7). Similarly, comments on broader obligations of the Member States exceeding the wording of Article 19(1) on the basis of the limits to national procedural autonomy and general principles of Union law including human rights can be extended to cover Article 19 (see above Article 7 MN 2–4). Within the limits described above, Member States are free to charge application fees (see Article 7 MN 5–6). 2 Article 19(2) reiterates that applicants have an individual right to be granted a residence permit provided that the conditions set out in the Directive are met, although the right to residence is not acquired automatically (see above Article 14 MN 5–6 and Article 16 MN 3). In contrast to long-term resident status in the first Member State, the initial residence permit in the second Member State is not permanent: Member States shall issue a ‘renewable residence permit.’ The same applies to family members of the long-term resident in accordance with Article 19(3). In the absence of explicit rules to the contrary, Member States are free to define periods of validity for residence permits, although it can be argued that a validity period of a few months only would undermine the effet utile of the Directive (except when the purpose of residence is limited from the beginning).425 3 Residence permits may be withdrawn in accordance with Article 21. The conditions for renewal are the same as for the initial application until long-term resident status is acquired in the second Member State in accordance with Article 23. 1

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510

See Peers et al., EU Immigration and Asylum Law Vol. 2, p. 320.

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Art. 20

Long-Term Residents Directive 2003/109/EC

Part C III

Article 19a Amendments of long-term resident’s EU residence permits 1. Where a long-term resident’s EU residence permit contains the remark referred to in Article 8(4), and where, in accordance with the relevant international instruments or national law, responsibility for the international protection of the long-term resident is transferred to a second Member State before that Member State issues the long-term resident’s EU residence permit referred to in Article 8(5), the second Member State shall ask the Member State which has issued the long-term resident’s EU residence permit to amend that remark accordingly. 2. Where a long-term resident is granted international protection in the second Member State before that Member State issued the long-term resident’s EU residence permit referred to in Article 8(5), that Member State shall ask the Member State which has issued the long-term resident’s EU residence permit to amend it in order to enter the remark referred to in Article 8(4). 3. Following the request referred to in paragraphs 1 and 2, the Member State which has issued the long-term resident’s EU residence permit shall issue the amended longterm resident’s EU residence permit no later than 3 months after receiving the request from the second Member State. Article 19a contains special rules for beneficiaries of international protection if the 1 second Member State assumes responsibility or grants protection. It refers to two distinct scenarios. Article 19a(1) concerns situations where the second Member State assumes responsibility for international protection from the first Member State in accordance with the domestic and/or international rules applicable (see above Article 8 MN 8, 11). In that case, the remark in the long-term resident permit of the first Member State shall be adapted accordingly in order to prevent other states from misinterpreting who holds ultimate responsibility for compliance with non-refoulement obligations (see above Article 8 MN 9). By contrast, Article 19a(2) is about scenarios where the second Member State grants international protection the first Member State had not recognised beforehand. In this case, the remark shall be amended accordingly as well.

Article 20 Procedural guarantees 1. Reasons shall be given for any decision rejecting an application for a residence permit. It shall be notified to the third-country national concerned in accordance with the notification procedures under the relevant national legislation. The notification shall specify the possible redress procedures available and the time limit for taking action. Any consequences of no decision being taken by the end of the period referred to in Article 19(1) shall be determined by the national legislation of the relevant Member State. 2. Where an application for a residence permit is rejected, or the permit is not renewed or is withdrawn, the person concerned shall have the right to mount a legal challenge in the Member State concerned.

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Part C III Art. 21

Immigration

Article 20 replicates Article 10 by laying down procedural and judicial guarantees concerning the rejection of applications for residence permits by the second Member State. It should be given the same meaning as Article 10 both for the obligations mentioned explicitly in the wording and the parallel application of general principles of Union law, including human rights (see above Article 10 MN 1–3). 2 Article 20(1)(2) takes up Article 7(2)(4) on the consequences of no decision being taken by the domestic authorities of the second Member State and ought to be given the same meaning as said provision (see above Article 7 MN 7). It complements Article 19(1) establishing time limits for the examination of applications. 1

Article 21 Treatment granted in the second Member State 1. As soon as they have received the residence permit provided for by Article 19 in the second Member State, long-term residents shall in that Member State enjoy equal treatment in the areas and under the conditions referred to in Article 11. 2. Long-term residents shall have access to the labour market in accordance with the provisions of paragraph 1. Member States may provide that the persons referred to in Article 14(2)(a) shall have restricted access to employed activities different than those for which they have been granted their residence permit under the conditions set by national legislation for a period not exceeding 12 months. Member States may decide in accordance with national law the conditions under which the persons referred to in Article 14(2)(b) or (c) may have access to an employed or self-employed activity. 3. As soon as they have received the residence permit provided for by Article 19 in the second Member State, members of the family of the long-term resident shall in that Member State enjoy the rights listed in Article 14 of Directive 2003/86/EC. Article 21 gives long-term residents residing in a second Member State full equal treatment in all areas covered by Article 11. The comments on the various aspects covered by that provision apply accordingly. The reference to Article 11 is not limited to the first paragraph and Member States can apply the exceptions laid down in Article 11(2)–(4) to long-term residents residing in a second Member State as well. The explicit reference, in Article 21(1), that equal treatment applies ‘[a]s soon as they have received a residence permit provided for by Article 19’ confirms that the right of residence in the second Member State is not acquired automatically (see above Article 14 MN 5). 2 Article 21(2) allows Member States to considerably restrict labour market access, thereby establishing an exception from equal treatment under Article 11(1)(a) (see above Article 11 MN 12–16). Firstly, Article 21(2)(2) grants Member State the option to perpetuate sector-specific residence permits for economic purposes under Article 14(2)(a).426 It is not evident whether this exception only applies to scenarios of formal limitations in accordance with Article 14(3) or whether it may concern all those residing for economic purposes irrespective of whether the Member State concerned activated an exception under Article 14(3) (see above Article 14 MN 11–13). The explicit deference, in the wording of Article 21(2)(2), to ‘the conditions set by national 1

426 Third-country nationals can change employers on the basis of the restricted permit provided that they remain in the same sector of the economy; see Peers, Implementing Equality?, p. 457.

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Art. 22

Long-Term Residents Directive 2003/109/EC

Part C III

legislation’ indicates that Member States are meant to have broad discretion how to implement the provision. This generous reading does not compromise the effet utile of the Directive, since the last section of the paragraph explicitly limits its applicability to ‘a period not exceeding 12 months.’ This rather short time frame for perpetuating sector-specific residence permits implies that third-country nationals can work in a different sectors of the economy thereafter. Article 21(2)(3) gives Member State broad discretion to limit or foreclose labour 3 market access for students or third-country nationals residing for non-economic purposes in accordance with Article 14(2)(b), (c) (see above Article 14 MN 16–17). For students, this exception is stricter than rules on labour market access under the Student Directive 2004/114/EC. Third-country nationals are free, however, to apply for a residence permit in the second Member State on the basis of that Directive.427 For persons residing on other grounds, the exception appears reasonable, since they could apply for a residence permit on economic grounds under Article 14(2)(a) at any time. Article 21(3) grants family members equal treatment in accordance with Article 14 4 Family Reunion Directive whose scope is narrower than Article 11 Long-Term Residents Directive.428 Like in the case of the latter, Member States are free to apply more favourable provisions to family members (see above Article 11 MN 36).

Article 22 Withdrawal of residence permit and obligation to readmit 1. Until the third-country national has obtained long-term resident status, the second Member State may decide to refuse to renew or to withdraw the resident permit and to oblige the person concerned and his/her family members, in accordance with the procedures provided for by national law, including removal procedures, to leave its territory in the following cases: (a) on grounds of public policy or public security as defined in Article 17; (b) where the conditions provided for in Articles 14, 15 and 16 are no longer met; (c) where the third-country national is not lawfully residing in the Member State concerned. 2. If the second Member State adopts one of the measures referred to in paragraph 1, the first Member State shall immediately readmit without formalities the long-term resident and his/her family members. The second Member State shall notify the first Member State of its decision. 3. Until the third-country national has obtained long-term resident status and without prejudice to the obligation to readmit referred to in paragraph 2, the second Member State may adopt a decision to remove the third-country national from the territory of the Union, in accordance with and under the guarantees of Article 12, on serious grounds of public policy or public security. In such cases, when adopting the said decision the second Member State shall consult the first Member State. When the second Member State adopts a decision to remove the third-country national concerned, it shall take all the appropriate measures to effectively implement

427 Article 3(2)(d) Directive 2004/114/EC exempts students with a long-term residence permit from another Member States only when they reside in the second Member States on the basis of Article 14(2)(b) Directive 2003/109/EC. 428 See Hailbronner/Klarmann, Directive 2003/86/EC Article 14.

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Part C III Art. 22

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it. In such cases the second Member State shall provide to the first Member State appropriate information with respect to the implementation of the removal decision. 3a. Unless, in the meantime, the international protection has been withdrawn or the person falls within one of the categories specified in Article 21(2) of Directive 2004/83/EC, paragraph 3 of this Article shall not apply to third-country nationals whose long-term resident’s EU residence permit issued by the first Member State contains the remark referred to in Article 8(4) of this Directive. This paragraph shall be without prejudice to Article 21(1) of Directive 2004/83/EC. 4. Removal decisions may not be accompanied by a permanent ban on residence in the cases referred to in paragraph 1(b) and (c). 5. The obligation to readmit referred to in paragraph 2 shall be without prejudice to the possibility of the long-term resident and his/her family members moving to a third Member State. Content I. General Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Refusal to Renew or Withdrawal (Article 22(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Obligation to Leave the Country (Article 22(2)–(6)) . . . . . . . . . . . . . . . . . . . . . . .

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I. General Remarks 1

Article 22 on withdrawal is the negative equivalent of Articles 14–20 on applications for a right to reside in a second Member State. Withdrawal or refusal to renew results in an obligation to leave the territory of the second Member States and it is usually the first Member State where long-term resident status has as been acquired equivalent who is meant to assume responsibility for the third-country national and family members in accordance with the general scheme of the Directive. Voluntary or forced return after withdrawal or refusal to renew must comply with the prescriptions in the Return Directive 2008/115/EC adopted after the Long-Term Residents Directive.

II. Refusal to Renew or Withdrawal (Article 22(1)) Article 22(1) covers both withdrawal of existing residence permits and refusal to renew such a permit after an expiry of a temporary permit in accordance with Article 19(2). Given that long-term residents and most family members benefit from an individual right to be granted a residence permit if the conditions are met (see above Article 14 MN 6 and Article 16 MN 3, 5–7), Article 22(1) should be read to establish an exhaustive list of conditions for withdrawal or non-renewal (see Article 9 MN 1). In the absence of prescriptions to the contrary, Member States are free to regulate the administrative and judicial procedure autonomously subject to the limits established by general principles of Union law (see above Article 7 MN 2–4). Article 20 confirms that reasons must be given for non-renewal and that courts can be seized against any refusal or withdrawal. 3 Article 22(1)(a) concerns withdrawal or non-renewal on grounds of public policy or public security as defined in Article 17. The comments presented there and in relation to Article 6 apply accordingly (see above Article 6 MN 2–13). It should be noted that Article 22(1)(a) does not distinguish between public policy grounds at the time of an initial rejection of an application for a residence permit and later withdrawal. This distinction is only made after the acquisition of long-term resident status in the second Member State in accordance with Article 23 which results in the application of Article 12 on expulsion, which is stricter than Article 6 on rejection (see above Article 6 MN 4). 2

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Art. 22

Long-Term Residents Directive 2003/109/EC

Part C III

Article 22(1)(b) establishes a principle of parallelism for acquiring and losing residence rights in the second Member State which can be withdrawn or not renewed ‘where the conditions provided for in Article 14, 15 and 16 are no longer met.’429 This parallelism for acquisition and loss distinguishes residence rights in the second Member State from longterm resident status in first Member State, since the latter can only be lost under conditions which are stricter than for initial acquisition (see above Article 9 MN 1). The principle of parallelism stops applying when long-term resident status is acquired in the second Member State in accordance with Article 23. In practice, the option of withdrawal or non-renewal under Article 22(1)(b) will concern a number of different scenarios. The most important example of the principle of parallelism will be non-compliance with grounds for residence in accordance with Article 14(2). Thus, students may lose their permit if they quit their course or graduate successfully, although they can apply for a different residence permit in both cases (see above Article 14 MN 16). Similarly, workers or self-employed persons can lose their right of residence when they lose their job or discontinue their business, since the Commission Proposal that temporary incapacity for work as a result of illness or accident or entitlement to unemployment benefits ensue the retention of worker status was rejected by the Council.430 Member States have discretion how strictly they handle withdrawal or non-renewal in practice.431 In any case, the exceptions in Article 14(3) concerning the labour market situation and Union preference only apply to initial applications: they cannot be grounds for withdrawing or not renewing a residence permit which had been granted before.432 Another important ground for withdrawal or non-renewal may be non-compliance with the stable and regular resources requirement in Article 15(2)(a). Recital 22 reaffirms that the granting of social benefits to third-country nationals, possibly on the basis of an equal treatment obligation under Article 21(1) read in conjunction with Article 11(1)(c), does not preclude withdrawal or non-renewal.433 Member States are obliged to treat third-country nationals equally if they do not expel them, but they retain the right to withdraw or not to renew residence permits. The reference in Article 22(2)(b) to Article 16 shows that family members can lose their right of residence if the conditions for their acquisition are no longer fulfilled. In practice, this will concern situations of divorce in particular. Chapter III Long-Term Residents Directive does not contain an autonomous right of residence after divorce. It is not immediately clear what scenario Article 22(1)(c) refers to,434 although it can be construed as the counterpart of Article 15(1) in situations where a third-country national stays in a second Member State without fulfilling the necessary requirements. More specifically, it may become relevant when a third-country national does not submit an application for a residence permit within the three-month deadline or takes up an economic activity without authorisation (see above Article 15 MN 2–4).

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III. Obligation to Leave the Country (Article 22(2)–(6)) Article 22(2) emphasises that the first Member State retains responsibility for third- 9 country nationals and family members who had acquired their first residence permit on 429

See Acosta, The Long-Term Residence Status, p. 144–145; and Peers, Implementing Equality?, p. 458. See Article 16(2) Commission Proposal, COM(2001) 127. 431 Article 22(1) explicitly grants discretion through the formulation ‘may decide.’ 432 See above Article 14 MN 12–13; Acosta, The Long-Term Residence Status, p. 147; and Groenendijk, Citizenship and Integration, p. 447–448. 433 See Peers et al., EU Immigration and Asylum Law Vol. 2, p. 318. 434 See Peers et al., ibid., p. 321. 430

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the basis of Directive 2003/109/EC in its territory. The provision obliges the first Member State to ‘immediately readmit without formalities’ the persons concerned, although the Directive fails to establish a procedure rendering this obligation effective. Its application will be supplanted nowadays by the substantive and procedural requirements of the Return Directive 2008/115/EC whose Article 6(2) applies in this scenario. On the basis of the Return Directive, voluntary return usually has priority over forced return. Against this background, Article 22(5) on the option of voluntary departure to a third state instead of the first Member State in accordance with Article 22(2) is declaratory in most circumstances. The more specific deadlines enshrined in the Return Directive supplant the vague formulations in Article 22 Directive 2003/109/EC. Article 22(3)(1) authorises the second Member State to adopt a decision concerning return to a third state despite the general rule, in Article 22(2), that return to the first Member State shall have priority. It is subject to a strict condition, since it requires, in accordance with Article 12 on expulsion of long-term residents, serious grounds of public policy or public security – a condition that will not often be met (see above Article 12 MN 2–10). It seems that this rule is not supplanted by the Return Directive 2008/115/EC in most circumstances, since states can refrain from sending a thirdcountry national to another Member State in accordance with Article 6(2) Return Directive when reasons of public policy or national security require so. However, any forced removal to a third state on the basis of Article 22(3)(1) must comply with the procedural and substantive conditions of the Return Directive. Moreover, the consultation requirement with the first Member State under Article 22(3)(2), (3) must be complied with, although the provision is purely procedural and does not give the first Member State a veto right. Article 22(3a) exempts beneficiaries of international protection from the option of return to a third state under Article 22(3) to ensure compliance with the principle of non-refoulement (see above Article 8 MN 8–11). The provision does not apply to thirdcountry nationals constituting a particularly serious threat to public security in accordance with Article 21 Asylum Qualification Directive 2011/95/80. The situation of family members is left unaddressed by Article 22(2)–(4), but it appears that they would be required to leave with the long-term resident in light of the ancillary character of residence rights for family members (see above Article 16 MN 6).435 Article 22(4) prohibiting permanent entry bans has been supplanted by Article 11 Return Directive 2008/115/EC that generally prohibits permanent entry bans requiring Member States instead to establish their length on an individual basis. Return on the basis of Article 22 may be an occasion for the authorities of the first Member State to assess whether the third-country national concerned should be expelled from the first Member State on the basis of Article 12 for serious reasons of public policy or public security. In the ensuing proportionality assessment, the first Member State will have to give adequate weight to its responsibility for the person concerned in spite of intra-European mobility. It would be too simple for the authorities of the first Member State to conclude that periods of intra-European mobility reduce the weight of links with the first Member States in the context of Article 12(3)(d) and that the long-term resident can be expelled more easily for these reasons.436

435

See Handoll, Directive 2003/109/EC, Article 22 MN 17. See Anuscheh: ‘“We want you! But …” – Recruiting Migrants and Encouraging Transnational Circulation Through Progressive Inclusion’, ELJ 15 (2009), p. 700, 714–717; and Peers, Implementing Equality?, p. 459–460. 436

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Art. 24

Long-Term Residents Directive 2003/109/EC

Part C III

Article 23 Acquisition of long-term resident status in the second Member State 1. Upon application, the second Member State shall grant long-term residents the status provided for by Article 7, subject to the provisions of Articles 3, 4, 5 and 6. The second Member State shall notify its decision to the first Member State. 2. The procedure laid down in Article 7 shall apply to the presentation and examination of applications for long-term resident status in the second Member State. Article 8 shall apply for the issuance of the residence permit. Where the application is rejected, the procedural guarantees provided for by Article 10 shall apply. Chapter III of the Directive follows a model of gradual status change. Third-country 1 nationals acquire a renewable residence permit for a specific purpose first, which may be withdrawn or not renewed if the conditions are no longer fulfilled (see above Article 14 MN 7). After five years of legal residence in the second Member State, they can apply for long-term resident status in the second Member State which is subject to the same conditions as any other application for long-term resident status in accordance with Articles 3–7 of the Directive. Article 23(1) emphasises optional acquisition of long-term resident status in the second Member States without establishing any privileges. Article 23(2) aims to ensure that the procedural safeguards are respected by the second Member State as well. The acquisition of long-term resident status in the second Member State entails the 2 loss of the same status in the first Member State in accordance with Article 9(4)(1). Moreover, the same effect occurs after six years of absence from the first Member State irrespective of whether long-term resident status has been acquired in the second Member State in the meantime (see above Article 9 MN 14). There is, therefore, no guarantee that long-term resident status is retained in scenarios of intra-European mobility in either the first or the second Member State. This outcome does not run counter to the general scheme and the objective of Directive 2003/109/EC.437 Firstly, the six-year limit in Article 9(4)(2) seems to have been chosen deliberately in order to give ample time for the acquisition of long-term resident status in the second Member State. Secondly, it is the objective of the Directive to promote social integration of long-term residents which can hardly be assumed to rest on a solid foundation after six years of absence from a country. In any case, the first Member State can decide not to withdraw the status under Article 9(4)(2).

CHAPTER IV FINAL PROVISIONS Article 24 Report and rendez-vous clause Periodically, and for the first time no later than 23 January 2011, the Commission shall report to the European Parliament and to the Council on the application of this Directive in the Member States and shall propose such amendments as may be 437

Contra Peers et al., EU Immigration and Asylum Law Vol. 2, p. 319.

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necessary. These proposals for amendments shall be made by way of priority in relation to Articles 4, 5, 9, 11 and to Chapter III. 1

The Commission presented a report on the Long-Term Residents Directive in accordance with Article 24, but decided not to propose any amendments.438 In parallel, it proposed to amend Directive 2003/109/EC to extend its scope to beneficiaries of international protection by means of Directive 2011/51/EU (see above Article 1 MN 13). Article 24 grants the Commission a certain discretion when to present the next report.

Article 25 Contact points Member States shall appoint contact points who will be responsible for receiving and transmitting the information and documentation referred to in Articles 8, 12, 19, 19a, 22 and 23. Member States shall provide appropriate cooperation in the exchange of the information and documentation referred to in the first paragraph. 1

Article 25 is meant to support cooperation between national authorities concerning exchange of information in situations of intra-European mobility. Despite the practical relevance of the provision, the legislature decided not to specify how cooperation should be rendered effective in practice.439

Article 26 Transposition Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 23 January 2006 at the latest. They shall forthwith inform the Commission thereof. When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States. 1

The Commission initiated infringement proceedings against a number of Member States after the expiry of the transitional period (see above Article 1 MN 12). The LongTerm Residents Directive applies to new Member States after accession in accordance with the deadlines set out in the Treaty or Act of Accession.

Article 27 Entry into force This Directive shall enter into force on the day of its publication in the Official Journal of the European Union. 1

The Directive entered into force on 23 January 2004. 438 439

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See the Commission’s report on application, COM(2011) 585. See Hauschild, Einwanderungsrecht, p. 353.

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Art. 28

Long-Term Residents Directive 2003/109/EC

Part C III

Article 28 Addressees This Directive is addressed to the Member States in accordance with the Treaty establishing the European Community. The provision reflects general principles of Union law on implementing of EU 1 directives in accordance with Article 288 TFEU. It generally reminds readers that directives often give some discretion to Member States how to implement its provisions.

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IV. 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 Official Journal L 261, 06/08/2004, p. 19–23 Selected Bibliography: Askola, Legal Responses to Trafficking of Women for Sexual Exploitation in the European Union (Hart Publishing, 2007); Askola, ‘Violance against Women, Trafficking, and Migration in the European Union’, EJIL 13 (2007), p. 207; Boeles/Den Heijer/Lodder/Wouters, European Migration Law (Intersentia, 2009), p. 363–371; Boysen, ‘Migration und Menschenhandel in der EU – Grundrechtsschutz im Recht der polizeilichen und justiziellen Zusammenarbeit in Strafsachen’ Zeitschrift fu¨r Europarechtliche Studien 2008, p. 431; Chang/Kim, ‘Reconceptualizing Approaches to Human Trafficking: New Directions and Perspectives from the Field(s), Stanford Journal of Civil Rights and Civil Liberties’ 3 (2007), p. 317; Chuang, ‘Beyond a Snapshot: Preventing Human Trafficking in the Global Economy’, Indiana Journal of Global Legal Studies 13 (2006), p. 137; Council Framework Decision 2002/ 629/JHA (OJ 2002 L 203/1) on combating trafficking in human beings; Dragiewicz (ed.), Global human trafficking, critical issues and contexts (Routledge, 2014); Elliott, ‘(Mis)Identification of Victims of Human Trafficking: The Case R v. O’, IJRL 21 (2009), p. 727; Gallagher, The Law of International Human Trafficking (CUP, 2012); Gallagher, ‘Recent Legal Developments in the Field of Human Trafficking: A Critical Review of the 2005 European Convention and Related Instruments’, EJML 8 (2006), p. 163; Hoang, Human trafficking reconsidered – rethinking the problem, envisioning new solutions (International Debate Education Association, 2014); Huber, ‘Das Gesetz zur Umsetzung aufenthalts- und asylrechtlicher Richtlinien der Europa¨ischen Union’, Neue Zeitschrift fu¨r Verwaltungsrecht 2007, p. 977; Iniguez de Heredia, ‘People Trafficking: Conceptual issues with the United Nations Trafficking Protocol 2000’, HR Rev. 9 (2008), p. 299; Morano-Foadi, (ed.), Integration for third-country nationals in the European Union (Elgar, 2014); Piotrowicz, ‘European Initiatives in the Protection of Victims of Trafficking who give Evidence against their Traffickers’, IJRL 14 (2002), p. 263; Piotrowicz, ‘Trafficking of Human Beings and their Human Rights in the Migration Context’, in: Cholewinski/Perruchoud/MacDonald (eds.), International Migration Law: Developing Paradigms and Key Challenges (T.M.C. Asser Press, 2007), p. 275; Piotrowicz, ‘The UNHCR’s Guidelines on Human Trafficking’, IJRL 20 (2008), p. 1; Raffaelli, ‘The European Approach to the Prosecution of Trafficking Victims: The Council of Europe Convention, the EU Directive, and the Italian Experience’, German Law Journal 10 (2009), p. 205; Rijken, Trafficking in Persons – Prosecution from a European Perspective (T.M.C. Asser Press, 2003); Toepfer/Wells, ‘The Worldwide Market for Sex: A Review of International and Regional Legal Prohibitions Regarding Trafficking in Women’, Michigan Journal of Gender & Law (1994), p. 83; Ventrella ‘Protecting Victims of Trafficking in Human Beings in the UK: The Italian ‘Rimid Method’ that Could Influence the British Approach’, Journal of Migration and Refugee Issues (2007), p. 64.

THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular point 3 of Article 63 thereof, Having regard to the proposal from the Commission,(1) Having regard to the opinion of the European Parliament,(2) Having regard to the opinion of the European Economic and Social Committee,(3) Having consulted the Committee of the Regions, Whereas: (1) The framing of a common immigration policy, including the definition of the conditions of entry and residence for foreigners and measures to combat illegal (1)

OJ C 126 E, 28.5.2002, p. 393. Opinion delivered on 5 December 2002 (not yet published in the Official Journal). (3) OJ C 221, 17.9.2002, p. 80. (2)

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immigration, is a constituent element of the European Union’s objective of creating an area of freedom, security and justice. (2) At its special meeting in Tampere on 15 and 16 October 1999, the European Council expressed its determination to tackle illegal immigration at source, for example by targeting those who engage in trafficking of human beings and the economic exploitation of migrants. It called on the Member States to concentrate their efforts on detecting and dismantling criminal networks while protecting the rights of victims. (3) An indication of the growing concern about this phenomenon at international level was the adoption by the United Nations General Assembly of a Convention against Transnational Organised Crime, supplemented by a Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, and a Protocol Against the Smuggling of Migrants by Land, Sea and Air. These were signed by the Community and the 15 Member States in December 2000. (4) This Directive is without prejudice to the protection granted to refugees, to beneficiaries of subsidiary protection and persons seeking international protection under international refugee law and without prejudice to other human rights instruments. (5) This Directive is without prejudice to other provisions on the protection of victims, witnesses or persons who are particularly vulnerable. Nor does it detract from the prerogatives of the Member States as regards the right of residence granted on humanitarian or other grounds. (6) This Directive respects fundamental rights and complies with the principles recognised for example by the Charter of Fundamental Rights of the European Union. (7) Member States should give effect to the provision of this Directive without discrimination on the basis of sex, race, colour, ethnic or social origin, genetic characteristics, language, religion or belief, political or other opinions, membership of a national minority, fortune, birth, disabilities, age or sexual orientation. (8) At European level, Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence(4) and Council Framework Decision 2002/629/JHA of 19 July 2002 on combating trafficking in human beings(5) were adopted to strengthen the prevention and the fight against the above offences. (9) This Directive introduces a residence permit intended for victims of trafficking in human beings or, if a Member State decides to extend the scope of this Directive, to third-country nationals who have been the subject of an action to facilitate illegal immigration to whom the residence permit offers a sufficient incentive to cooperate with the competent authorities while including certain conditions to safeguard against abuse. (10) To this end, it is necessary to lay down the criteria for issuing a residence permit, the conditions of stay and the grounds for non-renewal and withdrawal. The right to stay under this Directive is subject to conditions and is of provisional nature. (11) The third country nationals concerned should be informed of the possibility of obtaining this residence permit and be given a period in which to reflect on their position. This should help put them in a position to reach a well-informed decision as to whether or not to cooperate with the competent authorities, which may be the police, prosecution and judicial authorities (in view of the risks this may entail), so that they cooperate freely and hence more effectively. (4)

OJ L 328, 5.12.2002, p. 17. OJ L 203, 1.8.2002, p. 1; replaced by Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, (OJ 2011 L 101/1). (5)

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(12) Given their vulnerability, the third-country nationals concerned should be granted the assistance provided by this Directive. This assistance should allow them to recover and escape the influence of the perpetrators of the offences. The medical treatment to be provided to the third-country nationals covered by this Directive also includes, where appropriate, psychotherapeutical care. (13) A decision on the issue of a residence permit for at least six months or its renewal has to be taken by the competent authorities, who should consider if the relevant conditions are fulfilled. (14) This Directive should apply without prejudice to the activities carried out by the competent authorities in all phases of the relevant national proceedings, and in particular when investigating the offences concerned. (15) Member States should consider authorising the stay on other grounds, according to their national legislation, for third-country nationals who may fall within the scope of this Directive, but who do not, or no longer, fulfil the conditions set by it, for the members of his/her family or for persons treated as members of his/her family. (16) To enable the third-country nationals concerned to gain their independence and not return to the criminal network, the holders of the residence permit should be authorised, under the conditions set by this Directive, to have access to the labour market and pursue vocational training and education. In authorising access of the holders of the residence permit to vocational training and education, Member States should consider in particular the likely duration of stay. (17) The participation of the third-country nationals concerned to programmes and schemes, already existing or to be introduced, should contribute to their recovery of a normal social life. (18) If the third-country nationals concerned submit an application for another kind of residence permit, Member States take a decision on the basis of ordinary national aliens’ law. When examining such an application, Member States should consider the fact that the third-country nationals concerned have been granted the residence permit issued under this Directive. (19) Member States should provide the Commission, with respect to the implementation of this Directive, with the information which has been identified in the framework of the activities developed with regard to the collection and treatment of statistical data concerning matters falling within the area of Justice and Home Affairs. (20) Since the objective of introducing a residence permit for the third-country nationals concerned who cooperate in the fight against trafficking in human beings cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale of the action, be better achieved at the Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective. (21) In accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on the European Union and to the Treaty establishing the European Community and without prejudice to Article 4 of the said Protocol, these Member States are not taking part in the adoption of this Directive and are not bound by it or subject to its application. (22) In accordance with Article 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on the European Union and the Treaty establishing the European Community, Denmark does not take part in the adoption of this Directive and is not bound by it or subject to its application, HAS ADOPTED THIS DIRECTIVE: 522

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Art. 1

Human Trafficking Directive 2004/81/EC

Part C IV

CHAPTER I GENERAL PROVISIONS Article 1 Purpose The purpose of this Directive is to define the conditions for granting residence permits of limited duration, linked to the length of the relevant national proceedings, to third-country nationals who cooperate in the fight against trafficking in human beings or against action to facilitate illegal immigration. Content I. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 6

I. General remarks Council Directive 2004/81/EC1 of 13 December 2004 (hereinafter: the Directive) 1 determines the conditions for granting residence permits to third-country nationals who are victims of trafficking in human beings and, if the respective Member State decided to extend the scope of the Directive, also to third-country nationals who have been the subject of an action to facilitate illegal immigration.2 Article 1 of the Directive contains its purpose and emphasises the link between the intention to cooperate and the granting of a (temporary) residence permit.3 Almost simultaneously to the presentation of the Commission’s Proposal for the 2 Directive 2004/814 the Member States agreed upon the Council Framework Decision 2002/629/JHA5 of 19 July 2002 on combating trafficking in human beings which was later referred to in the Directive (recital 8; Article 2 (c)). By adopting this Framework Decision, the Member States confirmed that the issue of trafficking in human beings and illegal immigration consists of two complementary legal elements: (1) First, the need for a basic harmonisation of the Member States’ criminal laws and (2) second, – as addresses by the Directive 2004/81/EC – granting a temporary residence permit for those who faithfully cooperate in the investigations and prosecutions. The Framework Decision was replaced by Directive 2011/36/EU6 which matches for the most part its predecessor’s provisions. Simultaneously to the EU’s efforts to adopt legislation to combat illegal immigration 3 and trafficking in human beings several agreements on the level of international law were entered into by the EU and most of its Member States. At the outset, the United 1 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). 2 See below Article 3 MN 6 for those Member States which extended its application. 3 For the drafting history of the directive and the general legislative framework addressing the issue of trafficking in human beings, see Kau, ‘Human Trafficking Directive 2004/81/EC’ in: Hailbronner (ed), EU Immigration and Asylum Law – Commentary, 1st edn (C.H. Beck/Hart/Nomos, 2010), Article 1 MN 3 et seqq. 4 COM(2002) 71 final. 5 Council Framework Decision 2002/629/JHA (OJ 2002 L 203/1) on combating trafficking in human beings (hereinafter: Framework Decision 2002/629/JHA). 6 OJ (2011 L 101/1) (hereinafter: Directive 2011/36/EU). The Commission proposes a ‘joint reading’ of Directive 2004/81/EG and Directive 2011/36/EU, COM(2014) 635, p. 6.

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Nations’ Convention Against Transnational Organised Crime7 as supplemented by the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (so-called Palermo Protocol)8 and by the Protocol Against the Smuggling of Migrants by Air, Land and Sea was signed.9 4 This was followed by the 2005 Council of Europe Convention on Action against Trafficking in Human Beings,10 roughly regulating the same matters as the UN Protocol.11 However, the Convention comprised several binding provisions on the protection of persons being trafficked.12 5 The UK, Ireland and Denmark are not taking part in the Directive.13 Thus, these countries are not bound by the Directive or subject to its application.14

II. Purpose 6

As indicated by the wording, the Directive is intended to complement the legislative framework addressing the issue of trafficking in human beings and illegal immigration. While at first rules of criminal law underwent measures of harmonisation the main 7 General Assembly of the United Nations, Resolution 55/25 of 8 January 2001 (A/Res/55/25); see the text available at: www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf [last accessed: 8 April 2015]; the Convention and its Protocols entered into force on 29 September 2003; by April 2015 there are 185 ratifications, among them all EU Member States and the EU itself (on the state of ratification see: https://treaties.un.org/doc/Treaties/2007/12/13/XVIII12.en.pdf) [last accessed: 8 April 2015]. 8 Doc. A/55/383, see also Gallagher, EJML 8 (2006), p. 163, 165 et seqq.; Boysen, Zeitschrift fu ¨r Europarechtliche Studien 2008, p. 431, 437 et seqq.; Piotrowicz, IJRL 14 (2002), p. 263, 265 et seqq.; Piotrowicz, IJRL 20 (2008), p. 1 et seq.; Chuang, Indiana Journal of Global Legal Studies 13 (2006), p. 137, 147 et seq.; Rijken, Trafficking in Persons, p. 53 et seqq. 9 See also UNHCR (ed), Combatting Human Trafficking: Overview of UNHCR Anti-Trafficking Activities in Europe, Bureau for Europe Policy Unit 2005; UNHCR (ed), Guidelines on International Protection, 7 April 2006, HCR/GIP/06/07; see also Chang/Kim, Stanford Journal of Civil Rights and Civil Liberties 3 (2007), p. 317, 329 et seq.; Boysen, Zeitschrift fu¨r Europarechtliche Studien 2008, p. 431, 437; Gallagher, EJML 8 (2006), p. 163, 165 (’ … its emphasis is squarely on criminal justice aspects of trafficking. … but very little in the way of hard obligation.’); Chuang, Indiana Journal of Global Legal Studies 13 (2006), p. 137, 148 et seq. (‘… clear focus on targeting the traffickers and, to a lesser extent, protecting the victims.’); Piotrowicz, IJRL 20 (2008), p. 1, 3 et seq. (‘… from the victims perspective, the Protocol offers only limited assistance with rather nebulous, aspirational obligations that leave much to the State’s discretion’); Raffaelli, GLJ 2009 (10), p. 205, 206; Rijken, Trafficking in Persons, p. 66 et seqq.; rather critically for not including the domestic dimension and the trade of people, see Iniguez de Heredia, HR Rev. 9 (2008), p. 299, 300 et seqq. 10 CETS No. 197; CM(2005)32 Addendum 1 final 3 May 2005, see the text available at: http:// conventions.coe. int/Treaty/EN/Treaties/Html/197.htm (last accessed: 8 April 2015); entered into force on 1 February 2008. In the meantime 43 States have ratified the Convention, among them 27 Member States of the EU (all but the Czech Rep.), see http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=197&CM= &DF=&CL=ENG (last accessed: 8 April 2015). 11 Gallagher, EJML 8 (2006), p. 163, 170 et seqq.; Raffaelli, GLJ 10 (2009), p. 205, 210 et seqq.; Peers, EU Justice and Home Affairs Law, 3rd edn (OUP, 2011), no. 5.5.4, p. 271; Boeles/den Heijer et. al., European Migration Law, p. 365; Piotrowicz, IJRL 20 (2008), p. 1 et seq.; see for further information Kau, ‘Human Trafficking Directive 2004/81/EC’ in: Hailbronner (ed), EU Immigration and Asylum Law – Commentary, 1st edn (C.H. Beck/Hart/Nomos, 2010), Article 1 MN 14. 12 Boysen, Zeitschrift fu ¨ r Europarechtliche Studien 2008, p. 431, 439. 13 See protocols 21 and 22 annexed to the Treaty on European Union and the Treaty establishing the European Community (Lisbon version) and recitals 21 and 22 of this Directive; see Boeles/den Heijer et al., European Migration Law, p. 366; see also House of Commons, Written answers of 9 December 2004 by Mr. Desmond Browne [then: Secretary of State for the Home Department of the United Kingdom], Column 741W. 14 For the drafting history of Article 1, see Kau, ‘Human Trafficking Directive 2004/81/EC’ in: Hailbronner (ed), EU Immigration and Asylum Law – Commentary, 1st edn (C.H. Beck/Hart/Nomos, 2010), Article 1 MN 16 et seqq.

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Art. 2

Human Trafficking Directive 2004/81/EC

Part C IV

purpose of the Directive aimed at offering a provisional residence status to those who are willing to cooperate with the competent authorities in order to combat traffickers networks and smuggler organisations. For this reason, the connection with proceedings in the Member States (‘relevant national proceedings’) appears to be of great relevance for granting residence permits under the Directive by implicitly making the person’s usability in the respective proceedings a requirement for upholding and, in times, prolongation of the status. Moreover, the linkage between the status to be granted pursuant to the Directive and the mostly criminal proceedings on Member State level indicate that the residence permits are not granted for humanitarian purposes only but predominantly for investigating and prosecuting the related offences. Considerable criticism addressed the issue that the Directive did not find an 7 appropriate balance between its two purposes. While the authorities’ interest to obtain valuable information from the victims in order to safeguard an effective investigation and prosecution of related crimes is sufficiently ensured by several provisions,15 the protection of the victims from the criminals’ retribution and the legal guarantees offered in exchange were assessed to be too weak.16 Also the Commission admits in its 2010 report that the ‘potential of the Directive … is not being put to full use’.17 In its 2014 Communication the Commission admitted that the ‘possibility of issuing permits to third-country nationals in exchange for cooperation with the authorities is under-utilised’.18

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) “action to facilitate illegal immigration” covers cases such as those referred to in Articles 1 and 2 of Directive 2002/90/EC; (c) “trafficking in human beings” covers cases such as those referred to in Articles 1, 2 and 3 of Framework Decision 2002/629/JHA; (d) “measure to enforce an expulsion order” means any measure taken by a Member State to enforce the decision of the competent authorities ordering the expulsion of a third-country national; (e) “residence permit” means any authorisation issued by a Member State, allowing a third-country national who fulfils the conditions set by this Directive to stay legally on its territory. (f) “unaccompanied minors” means third-country nationals below the age of eighteen, who arrive on the territory of the Member State unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not 15 E. g. Article 3(2), Article 5(2), Article 6(4) and Article 8(1)(a) to (c) of the Directive, see for further information the interpretation of the aforementioned provisions. 16 Boeles/den Heijer et al., European Migration Law, p. 370; Chuang, Indiana Journal of Global Legal Studies 13 (2006), p. 137, 148 et seq.; Piotrowicz, IJRL 14 (2002), p. 263, 268 (‘But it is an attempt to obtain the cooperation of victims on the cheap and, as such, will fail.’); Boysen, Zeitschrift fu¨r Europarechtliche Studien 2008, p. 431, 448 (‘… Ziel [ist] nicht der Schutz der Opfer, sondern die Strafverfolgung der Täter.’); Gallagher, EJML 8 (2006), p. 163, 169; on the similar orientation of the ‘Palermo Protocol’, see Piotrowicz, IJRL 20 (2008), p. 1, 4. 17 COM(2010) 493, p. 10 (conclusions). 18 COM(2014) 635, p. 10.

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effectively taken into the care of such a person, or minors who are left unaccompanied after they have entered the territory of the Member State. Content I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Third-Country national (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Action to facilitate illegal immigration (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Trafficking in human beings (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Measures to enforce an expulsion order (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Residence permit (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Unaccompanied minors (f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 2 3 4 5 7 9

I. General remarks 1

As in many other directives, Article 2 also provides definitions of its most important terms. It aims to safeguard that these terms are interpreted identically by the national legislations and thus helps to ensure a consistent transposition and application of the Directive in all Member States.19

II. Definitions 1. Third-Country national (a) 2

The term third-country national is defined by default by reference to the citizenship of the European Union within the meaning of Article 20 TFEU (ex-art.17(1) TEC). Pursuant to this provision, ‘third-country national’ comprises people who do not possess the nationality of a Member State of the European Union and stateless persons.20 As the ECJ pointed out in the Micheletti case, persons possessing the nationality of a third country in addition to the nationality of an EU Member State are not third-country nationals even if their connection with the third country is predominant.21 Therefore, persons with double citizenship of which one is the citizenship of a Member State are not assessed to be ‘third-country nationals’ in the meaning of Article 2 (a) of Directive 2004/81/EC.

2. Action to facilitate illegal immigration (b) 3

With the term ‘action to facilitate illegal immigration’ (b) refers explicitly to the offences defined in Article 1 and Article 2 of the Directive 2002/90/EC.22 The first goal of this Directive was to enhance the existing legal framework in order to combat the aiding of illegal immigration, whether in connection with unauthorised crossing of the border or for the purpose of sustaining networks that exploit human beings.23 19 See Hailbronner/Gies, Directive 2004/114/EC, Article 2, MN 1; Hailbronner/Are ´valo, Directive 2003/ 86/EC, Article 2, MN 1; Tsourdi/Peek, Directive 2003/9/EC, Article 2 MN 1; for the drafting history of Article 2, see Kau, ‘Human Trafficking Directive 2004/81/EC’ in: Hailbronner (ed), EU Immigration and Asylum Law – Commentary, 1st edn (C.H. Beck/Hart/Nomos, 2010), Article 2 MN 2 et seqq. 20 COM(2002) 71, p. 10. 21 See ECJ, Micheletti, C-369/90, EU:C:1992:295, para 10 et seqq. 22 COM(2002) 71, p. 10; see also recital 8 of this Directive. 23 For further information pertaining to details of Directive 2002/90/EC, see Kau, ‘Human Trafficking Directive 2004/81/EC’ in: Hailbronner (ed), EU Immigration and Asylum Law – Commentary, 1st edn (C.H. Beck/Hart/Nomos, 2010), Article 2 MN 9 et seqq.

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3. Trafficking in human beings (c) The definition of the term ‘trafficking in human beings’ also refers to provisions 4 already being adopted by EU Member States. In this case the interpretation follows the definition comprised in Article 2, Article 3 and Article 4 of the Directive 2011/36/EU.24

4. Measures to enforce an expulsion order (d) The concept of ‘measures to enforce an expulsion order’ pursuant to Article 2 (d) was 5 inspired by Council Directive 2001/40/EC of 28 May 200125 on the mutual recognition of decisions on the expulsion of third-country nationals.26 In this Directive the Member States adopted several provisions in order ‘to make possible the recognition of an expulsion decision issued by a competent authority in one Member State’ within the Schengen framework.27 In the same manner the expulsion orders of one Member State are to be accepted for the purpose of combating the trafficking in human beings according to Directive 2004/81/EC. In contrast to the provisions of the Directive 2001/40/EC the ‘measures to enforce an 6 expulsion’ pursuant to Article 2 (d) are, however, not confined to administrative decisions but also extend to those taken by the judicial authorities in the Member States.28

5. Residence permit (e) The reference to the ‘conditions’ foreseen in the Directive, lead to the requirements 7 established in community law.29 Thereby, the control over the specific conditions for granting a residence permit relating to victims of trafficking in human beings are transferred to the EU decision-making process. In this regard, Member States were still empowered to issue the specific residence 8 permit albeit only on the premises provided for in the respective provisions of the Directive. Thereby, the application of the term ‘residence permit’ was confined to those permits granted in relation to the trafficking in human beings and the cooperation with the competent authorities.

6. Unaccompanied minors (f) Eventually, the definition of the term ‘unaccompanied minor’ can be found in 9 concurring wording in many directives in the field of Justice and Home Affairs.30 The definition comprises two different situations leading to the same consequence of a 24 On the former Framework Decision 2002/629/JHA, see Report from the Commission to the Council and the European Parliament, Based on Article 10 Framework Decision 2002/629/JHA, COM(2006) 187; see also recital 8 of this Directive. For further details on Framework Decision 2002/629/JHA, see Kau, ‘Human Trafficking Directive 2004/81/EC’ in: Hailbronner (ed), EU Immigration and Asylum Law – Commentary, 1st edn (C.H. Beck/Hart/Nomos, 2010), Article 2 MN 16 et seqq. 25 Council Directive 2001/40/EC (OJ 2001 L 149/34) on the mutual recognition of decisions on the expulsion of third-country nationals. 26 COM(2002) 71, p. 10. 27 Article 1 Council Directive 2001/40/EC (OJ 2001 L 149/34) on the mutual recognition of decisions on the expulsion of third-country nationals. 28 COM(2002) 71, p. 10; see also Peers, EU Justice and Home Affairs Law, 3rd edn (OUP, 2011), no. 5.6, p. 273. For the drafting history of Article 2, see Kau, ‘Human Trafficking Directive 2004/81/EC’ in: Hailbronner (ed), EU Immigration and Asylum Law – Commentary, 1st edn (C.H. Beck/Hart/Nomos, 2010), Article 2 MN 25. 29 Council doc. no. 14432/03 of 11 November 2003, p. 3. 30 See Article 2(i) Directive 2004/83/EC; Article 2(h) Directive 2005/85/EC; Article 2(f) Directive 2001/ 55/EC; Article 2(h) Directive 2003/9/EC.

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Part C IV Art. 3

Immigration

minor being present in the territory of a Member State without any adult person responsible for him or her. A minor is regarded as ‘unaccompanied’ irrespective of having entered the Member State’s territory unaccompanied or being left behind by the person responsible. The age of majority is explicitly set at 18 years by the Directive.

Article 3 Scope 1. Member States shall apply this Directive to the third-country nationals who are, or have been victims of offences related to the trafficking in human beings, even if they have illegally entered the territory of the Member States. 2. Member States may apply this Directive to the third-country nationals who have been the subject of an action to facilitate illegal immigration. 3. This Directive shall apply to the third-country nationals concerned having reached the age of majority set out by the law of the Member State concerned. By way of derogation, Member States may decide to apply this Directive to minors under the conditions laid down in their national law. Content I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Scope of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Victims of trafficking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Action to facilitate illegal immigration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Third-country nationals having reached the age of majority. . . . . . . . . . . 4. Discretionary application to minors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 4 5 6

I. General remarks 1

Article 3 limits the personal scope of application of the Directive in several respects. First, Article 3(1) extends the application of the Directive to third-country nationals who are, or have been victims of offences related to the trafficking in human beings. As the Directive emphasises this is also true when the person concerned has illegally entered the territory of the Member State. Conversely, Article 3(2) of the Directive foresees that Member States may discretionary apply the Directive to third-country nationals who have been the subject of an action to facilitate illegal immigration.31

II. Scope of application 2

According to Article 3 only the application of the Directive to ‘third-country nationals who are, or have been victims of offences related to the trafficking in human beings’ is mandatory. The application to the other two categories is optional and therefore remains in the discretion of each Member State.

31 For the drafting history of Article 3, see Kau, ‘Human Trafficking Directive 2004/81/EC’ in: Hailbronner (ed), EU Immigration and Asylum Law – Commentary, 1st edn (C.H. Beck/Hart/Nomos, 2010), Article 3 MN 3 et seqq.

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Art. 4

Human Trafficking Directive 2004/81/EC

Part C IV

1. Victims of trafficking First, the scope of the Directive extends to third-country nationals who suffered from 3 the offences referred to in Article 2 (c) of the Directive in connection with Article 2, Article 3 and Article 4 of Directive 2011/36/EU.32

2. Action to facilitate illegal immigration The application of the Directive to ‘third-country nationals who have been the 4 subject of an action to facilitate illegal immigration’ depends on the discretionary decision of the Member States.33 The main reason for making a difference between the two groups of persons entering the Member States illegally is that the victims of trafficking have been in most cases transported unwillingly and compulsory to the EU whereas third-country nationals being subject to actions to facilitate illegal immigration have in many cases consciously and deliberately engaged in those actions and are, therefore, not comparably in the need of help. In fact, this second group of thirdcountry nationals is also supposed to be less cooperative in contributing as witnesses in the proceedings against traffickers and smugglers. In its 2014 Communication the Commission stated that ten Member States have made use of this opportunity.34

3. Third-country nationals having reached the age of majority The Directive applies in general only to third-country nationals who have already 5 reached the age of majority. According to the first subparagraph of Article 3(3) the criterion set out for assessing this element depends on ‘the law of the Member State concerned’. Although this rule empowers each Member State to set out the age of majority on an independent basis in most Member States the relevant age for majority begins with 18 years of age.

4. Discretionary application to minors Pursuant to the second subparagraph of Article 3(3) of the Directive the Member 6 States may discretionarily extend the application of the Directive also to minors.35 For that reason, the details are left to national legislation of the Member States which are bound to stipulate the conditions required. As a result, a vast majority of the Member States has chosen to apply the Directive to both adults and minors.36

Article 4 More favourable provisions This Directive shall not prevent Member States from adopting or maintaining more favourable provisions for the persons covered by this Directive.

32

For further information see above Article 2 MN 4. Peers, EU Justice and Home Affairs Law, 3rd edn (OUP, 2011), no. 5.6, p. 273. 34 COM(2014) 635, p. 3, namely Austria, Belgium, Czech Rep., Greece, Estonia, Luxembourg, Malta, Portugal, Romania and Sweden. 35 Peers, EU Justice and Home Affairs Law, 3rd edn (OUP, 2011), no. 5.6, p. 273. 36 COM(2014) 635, p. 3, all Member States except Slovakia have done so, whereas in Lithuania children are included only under specific conditions. 33

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Part C IV Art. 5

Immigration Content

I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. More favourable provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3

I. General remarks Article 4 comprises a conventional version of a ‘more favourable provisions’ clause which covers the relation between this Directive and other provisions which result from national or international law governing the same subject. Consistent with most directives on migration and asylum law37 it offers wide range opportunities to the Member States to adopt or maintain more favourable provisions. 2 Article 4 underlines that the Directive does not contain exhaustively harmonised rules on the level of the lowest common denominator but provides leeway for national rules providing further and better standards. Hence, the Member States are, on principle, free to enact or maintain more favourable provisions pursuant to their national legislation or international obligations. 1

II. More favourable provisions 3

Generally speaking, the Directive provides for a minimum regime open to victims of the offences referred to who cooperate with the competent authorities. Even though the measures of the Directive form a common legal basis, they are without prejudice to other national or Community provisions in related matters, such as victims’ rights, witness protection and the protection of minors.38

CHAPTER II PROCEDURE FOR ISSUING THE RESIDENCE PERMIT Article 5 Information given to the third-country nationals concerned When the competent authorities of the Member States take the view that a thirdcountry national may fall into the scope of this Directive, they shall inform the person concerned of the possibilities offered under this Directive. Member States may decide that such information may also be provided by a nongovernmental organisation or an association specifically appointed by the Member State concerned. Content I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Examination of the application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Competent authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Reasonable grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Extent of information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Role of non-state actors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 4 5 7 11

37 E. g. Tsourdi/Peek, Directive 2003/9/EC, Article 4, MN 3 et seqq.; Hailbronner/Gies, Directive 2004/ 114/EC, Article 4, MN 1 et seqq.; Thym, Directive 2003/109/EC, Article 13, MN 1; Hailbronner/Gies, Directive 2005/71/EC, Article 4, MN 1. 38 Peers, EU Justice and Home Affairs Law, 3rd edn (OUP, 2011), no. 5.6, p. 273; COM(2002) 71, p. 11.

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Art. 5

Human Trafficking Directive 2004/81/EC

Part C IV

I. General remarks Article 5(1) states the general principle that competent authorities of the Member 1 States are in the outset obliged to examine whether third-country nationals met within their territory or at their borders fall under the application of the Directive. If this has been answered in the affirmative the third-country nationals have to be informed about the possibilities resulting from the application of the Directive. Additionally, Article 5(2) provides that under certain conditions not only government authorities are permitted to give the information required but – on the basis of the Member States’ empowering decisions – also NGO’s and associations are authorised to do so.39

II. Examination of the application The underlying principle of Article 5 provides that the application of the Directive 2 2004/81/EC would probably fail if the victims of trafficking in human beings and of actions to facilitate illegal immigration were not properly informed about their legal opportunities under the Directive. Therefore, it is of utmost importance to first discover and identify the third-country nationals concerned in order to inform them on the various opportunities offered.40 This obligation rests with the ‘competent authorities of the Member States’, which have to examine whether someone falls into the scope of the Directive. The extraordinary importance of identifying the entitled persons and providing 3 them with the necessary information on the available protection scheme has been pointed out also in a decision of the Court of Appeal of the United Kingdom in the case R v. O.41 Although the UK is not bound by the Direction 2004/81/EC it is a contracting party of the Council of Europe Convention on Action against Trafficking in Human Beings of 2005 which provides for a similar protection framework.42 As the Court of Appeals noted, it is imperative that those putatively entitled to receive protections be accurately and rapidly identified and be provided with competent legal advice where necessary.43

1. Competent authorities According to Article 5(1) the ‘competent authorities of the Member States’ are 4 obliged to examine whether the Directive is applicable to third-country nationals. Before the background of the drafting history it can be concluded that, most notably, police forces on state and federal level, the customs and immigration service, the public attorneys and also other authorities operating under similar capacity in the field of ‘investigation and prosecution’ are obliged to identify third-country nationals who might fall under the Directive.

39 For the drafting history of Article 5, see Kau, ‘Human Trafficking Directive 2004/81/EC’ in: Hailbronner (ed), EU Immigration and Asylum Law – Commentary, 1st edn (C.H. Beck/Hart/Nomos, 2010), Article 5 MN 2 et seqq. 40 Raffaelli, GLJ 10 (2009), p. 205, 207 criticising that there is no ‘special procedure in order to identify victims’. For the position of the Commission, see COM(2002) 71, p. 11; COM(2010) 493, p. 4, COM(2014) 635, p. 3 (‘Early identification is crucial for the effective application of the Directive, …’). 41 R v. O [2008] EWCA Crim 2835. 42 See Article 1 MN 4. 43 Elliott, IJRL 21 (2009), p. 727, 736.

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2. Reasonable grounds The first precondition for initiating the process contemplated by the legal framework of the Directive is the determination that a third-country national ‘may fall’44 into the scope of the Directive. The use of a may clause indicates that it is not required that the competent authorities are entirely convinced that someone falls under the Directive. Instead, it is sufficient that the authorities take the position that there are reasonable grounds that the person at hand might be a victim of trafficking in human beings or of an action to facilitate illegal immigration.45 Therefore, the obligation of Article 5(1) is already eminent when there are cognizable and comprehensible facts leading to the conclusion that someone might fall under the Directive. Remaining shadows of doubt are no obstacle in this context.46 For instance, it suffices that a person apprehended by the authorities does not hold valid identity papers, valid residence permits or visa. Further indicators for being confronted with a person probably falling into the scope of the Directive are particular circumstances of the apprehension47 and specific features48 of the person in question. 6 The moment in time as of which the authorities are obliged to provide information is clarified by Article 5(1) in combination with Article 11(2) of Directive 2011/36/EU. Pursuant to these provisions Member States must provide victims with assistance ‘as soon as the competent authorities have a reasonable-grounds indication’ for assuming a person might be a victim.49 5

3. Extent of information After the competent authorities have taken the view that the person at hand might fall into the scope of the Directive they are obliged to give the information needed to enjoy the benefits of the Directive. However, Article 5 does not mention any concrete piece of information but points out in general terms that the authorities are obliged to give information ‘of the possibilities offered under this Directive’. The importance of giving the information needed is underscored by Article 11(6) of Directive 2011/36/EU. 8 Therefore, the extent of information to be provided to third-country national falling into the scope of the Directive is orientated to the entitlements and benefits laid down in the Directive. The most important information provided must focus on the opportunity of and the conditions for granting a (temporary) residence permit to victims of trafficking in human beings and of actions to facilitate illegal immigration in exchange for cooperating with the competent authorities for investigation and prosecution purposes.50 In any case, it is not sufficient information to merely point to the possibility of receiving a temporary residence permit and to conceal all other possibilities involved.51 This is to a lesser extent the result of a humanitarian approach but rather an impulse to keep the framework established by the Directive efficient and successful by ensuring the readiness of the victims to cooperate with the competent authorities. 7

44

Emphasis added. With a similar standard: Noll/Gunneflo, Odysseus Synthesis Report on the Directive 2004/81, p. 16 (‘We believe, though, that the Directive is infringed where the authority in question can be reasonably expected to have concluded that a person is likely to come under its scope.’), emphasis added. 46 Noll/Gunneflo, Odysseus Synthesis Report on the Directive 2004/81, p. 16 (‘Absolute certainty cannot be expected, …’). 47 E. g. apprehension off the official traffic links, in restricted border regions, using uncommon means of transportation, being together with a group of people unrelated by family or work ties, etc. 48 E. g. female, age near majority, particularly vulnerable, minor, etc. 49 COM(2014) 635, p. 4. 50 For further information see the interpretation of Article 8 of this Directive. 51 Noll/Gunneflo, Odysseus Synthesis Report on the Directive 2004/81, p. 16 and 30. 45

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For instance, the third-country nationals concerned must also be informed to what 9 extent the holding of a (temporary) residence permit pursuant to the Directive can promote their expectation to receive a permanent residence permit in the EU (recital 18). Additionally, the third-country nationals concerned must be instructed about the opportunity of having a ‘reflection period’ allowing them to recover and escape the influence of traffickers and smugglers in preparation of their decision to cooperate and about the treatment they are entitled to receive even before a (temporary) residence permit has been issued, e. g. resources to ensure subsistence, access to emergency medical treatment, attending special needs of the most vulnerable. If minors are included in the protection of the Directive this has to be told to the 10 victims, too. An the victims of trafficking in human beings and of actions to facilitate illegal immigration have to be informed of the opportunity of access to the labour market, to vocational training and to education as being limited to the duration of the residence permits. Eventually, the authorities have to provide information if the respective Member State and/or NGO’s offer programmes or schemes aimed at the victims’ recovery of a normal social life.

III. Role of non-state actors As the Commission pointed out in its original proposal, the important role played by 11 associations and non-governmental organisations in the area of providing assistance to victims of illegal immigration justifies to allow that their services are used.52 This is also why victims would perhaps even prefer to deal with members of non-state actors rather than representatives of the Member States.53 Moreover, the Article 5(2) requires that at least the ‘association’ or the ‘non-govern- 12 mental organisation’ in charge needs to be ‘specifically appointed by the Member State concerned’. Thus, any association intending to become active in instructing thirdcountry nationals who fall under the Directive needs to be individually empowered by the Member State. Without fulfilling this formal authorisation requirement its action can be illegal according to national law and inconsistent with the rules laid down in the Directive. Questions may arise if the Member States can also stipulate a general delegation to all or several associations residing on its territory since Article 5(2) demands a ‘specific appointment’. In this regard, the wording of Article 5(2) leaves the decision to what extent the non-state actors are included in the obligations of Article 5, above all, to the Member States.54

Article 6 Reflection period 1. Member States shall ensure that the third-country nationals concerned are granted a reflection period allowing them to recover and escape the influence of the perpetrators of the offences so that they can take an informed decision as to whether to cooperate with the competent authorities. The duration and starting point of the period referred to in the first subparagraph shall be determined according to national law. 52

COM(2002) 71, p. 11. COM(2002) 71, p. 11. 54 See for further information, Kau, ‘Human Trafficking Directive 2004/81/EC’ in: Hailbronner (ed), EU Immigration and Asylum Law – Commentary, 1st edn (C.H. Beck/Hart/Nomos, 2010), Article 5, MN 14. 53

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2. During the reflection period and while awaiting the decision of the competent authorities, the third-country nationals concerned shall have access to the treatment referred to in Article 7 and it shall not be possible to enforce any expulsion order against them. 3. The reflection period shall not create any entitlement to residence under this Directive. 4. The Member State may at any time terminate the reflection period if the competent authorities have established that the person concerned has actively, voluntarily and on his/her own initiative renewed contact with the perpetrators of the offences referred to in Article 2(b) and (c) or for reasons relating to public policy and to the protection of national security. Content I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Reflection period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Duration and starting point . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Informed decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Treatments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Access to treatment referred to in Article 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. No enforcement of expulsion order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. No entitlements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Immediate termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Evidentiary requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Perpetrators of offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Reasons of public policy and protection of national security. . . . . . . . . . .

1 5 5 7 11 13 13 17 18 19 21 25 26

I. General remarks 1

After the victims of trafficking in human beings or of actions to facilitate illegal immigration have obtained all information required by Article 5(1),55 they have to decide as to whether they are determined to enter into a cooperation with the competent authorities in order to enjoy the possibilities offered by the Directive. However, in many cases the mere information about the possibilities will not be enough to convince the victims and, perhaps, even overburden them. Frequently, the victims of trafficking or illegal immigration will still be under the physical, emotional or economic control of the traffickers and smugglers rendering it almost impossible to take a reasonable and deliberate decision. This is especially true for the victims of trafficking in human beings as this is an often traumatic experience in many cases negatively affecting their state to take a momentous decision for them personally and also for their families in the country of origin.56 According to Article 6 of the Directive this gap has been filled by a ‘reflection period’ which, in the first place, is seen as a ‘temporary respite’.57 Thereby, the thirdcountry nationals concerned are given the possibility to recover and, finally, achieve the state to take a reasonable and deliberate decision.58 55

See Article 5 MN 7. COM(2002) 71, p. 12 (‘… they be not in a state to decide immediately …, particularly given the risks they run’). 57 COM(2002) 71, p. 12. 58 For the drafting history of Article 6, see Kau, ‘Human Trafficking Directive 2004/81/EC’ in: Hailbronner (ed), EU Immigration and Asylum Law – Commentary, 1st edn (C.H. Beck/Hart/Nomos, 2010), Article 6 MN 2 et seqq. 56

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Article 6(2) refers to Article 7 of the Directive and the treatment third-country 2 nationals are granted during the reflection period even before a (temporary) residence permit has been issued. According to the Commission’s Proposal the breathing space given by the reflection period coupled with ‘assistance, care and the support of an association’ is supposed to facilitate the victims’ ‘informed decision’ as to whether or not they wish to cooperate with the authorities.59 Additionally, it is stipulated that the reflection period will not create any entitlement 3 to residence (Article 6(3)) since the third-country nationals are merely tolerated until the competent authorities will decide on their future status.60 Conversely, any enforcement of expulsion – even if the expulsion decision itself is lawful – is prohibited during the reflection period (Article 6(2)).61 Eventually, Article 6(4) provides that the Member States may ‘at any time’ terminate 4 the reflection period if it has been established that the third-country national concerned has – under specific circumstances – renewed contact with traffickers. Since the precondition of any cooperation with the authorities and crucial element of the reflection period is the complete severance of all links with traffickers and smugglers, any renewal of contacts contradicts the intention of the Directive to foster the cooperation with victims of trafficking and illegal immigration and, thereby, combating those dangerous and exploitative offences. Besides this, the reflection period can also be terminated for reasons of ‘public policy’ or ‘national security’.

II. Reflection period 1. Purpose The purpose of providing a reflection period in Article 6(1) of the Directive is to 5 bring the third-country nationals who have been victims of trafficking in human beings or of actions to facilitate illegal immigration into a situation to seriously consider if he or she is willing to cooperate with the Member States’ authorities in order to contribute to criminal proceedings against traffickers and smugglers in exchange for granting a (temporary) residence permit.62 However, bearing in mind the vulnerable and dependent situation of most victims and the often traumatic experiences they have lived through, only providing information on the possibilities they might receive in exchange for cooperating with the competent authorities is not sufficient.63 If the concept of a (temporary) residence permit for victims of trafficking and illegal immigration is supposed to be effective, it is required to bring the persons concerned in a state to decide on the basis of all the facts – while equally keeping in mind the eminent risks they and their families run – whether they want to cooperate or not. Before this background, the wording of Article 6(1) establishing the Member States’ 6 obligation to ‘ensure’ that the third-country nationals concerned are granted a reflection period refers to active measures of the competent authorities to safeguard that the victims remain unaffected by measures from the perpetrators. This can, as a result, require official protection from threats and violence engendered by traffickers and smugglers. It can likewise require to include the third-country nationals concerned in 59

COM(2002) COM(2002) 61 COM(2002) 62 COM(2002) 63 COM(2002) 60

71, p. 12. 71, p. 12. 71, p. 12. 71 final. p. 5 et seqq. 71, p. 12.

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the witness protection program in order to ensure the cooperation and efficient recovery during the reflection period.64

2. Duration and starting point The duration of the reflection period has been one of the most controversial issues of the debate. While the Commission’s original Proposal provided for a 30 days reflection period which was deleted in the Council negotiations since several Member States preferred a longer period whereas several others favoured a shorter deadline.65 As a result, a more flexible provision was drafted not stipulating a precise number of days, but using objective criteria in order to allow an assessment of the appropriate duration. 8 The relevant criteria for assessing the duration of the reflection period are laid down in the phrase ‘allowing them to recover and escape the influence of the perpetrators’. The applicable yardstick for assessing the appropriate duration is, therefore, that the third-country national having been a victim of trafficking in human beings or illegal immigration has the opportunity to recover from the negative experiences survived in order to take an ‘informed decision’66. As every case of trafficking in human beings differs from the other, the criteria stipulated in Article 6(1) of the Directive leave room for a case-by-case approach. Therefore, the Member States are required to provide for a flexible legal framework stipulating short reflection periods for victims being only slightly affected by their experience, and comparably long reflection periods for traumatized and particularly vulnerable victims of trafficking in human beings.67 9 Even though the original 30-days-period of the Commission’s Proposal was deleted during the negotiations,68 it still has influence on the interpretation of the subsequently enacted provisions of the Member States. This relates, in the first place, to the Council of Europe Convention on Action against Trafficking in Human Beings which provides in its Article 13(1) that the reflection period should be at least 30 days.69 Therefore, under the condition that the provisions of national law leave room for a varying duration, the deadline of 30 days can be taken as the starting point for assessing the duration of the reflection period. As the Council negotiations have amply shown, the 30-days-period constitutes the average time period lying roughly in the middle of the diverse views of the Member States. However, this procedure is not eligible in the case that the Member States have adopted precise deadlines in national law which differ from the 30-days-orientation-line. 10 The escape from the ‘influence of the perpetrators of the offences’ was only mentioned in Article 6(1) in order to name the most essential precondition for the victim of trafficking and illegal immigration to be able to recover in a way requested by Article 6(1). As a result, without severing the links and, thereby, terminating the influence of the traffickers and smugglers the victims are not in the position to take an ‘informed decision’ as stipulated in Article 6(1). One could even doubt if the reflection period – notwithstanding its stipulation according to national law – can lawfully start when the links with the traffickers and smugglers still exist. 7

64

COM(2002) 71, p. 7. See below MN 9; critically on this Raffaelli, GLJ 10 (2009), p. 205, 207. 66 See below MN 11 et seqq. 67 Peers, EU Justice and Home Affairs Law, 3rd edn (OUP, 2011), no. 5.6, p. 273. 68 See Kau, ‘Human Trafficking Directive 2004/81/EC’ in: Hailbronner (ed), EU Immigration and Asylum Law – Commentary, 1st edn (C.H. Beck/Hart/Nomos, 2010), Article 6 MN 2 et seq. 69 See for the application of the Council of Europe Convention in the UK, Elliott, IJRL 21 (2009), p. 727, 735; COM(2014) 635, p. 5, Fn. 28. 65

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3. Informed decision The main objective of the reflection period is to bring the victims of trafficking and 11 illegal immigration in the state to take an ‘informed decision’ as to whether or not they want to cooperate with the competent authorities.70 The underlying principle of the Directive reflects a high degree of respect for the right to self-determination and of responsibility towards the third-country national appearing to be a victim of trafficking or illegal immigration. Hence, the authorities are not supposed to persuade or even threaten the third-country national concerned in order to foster their willingness to cooperate with the authorities, but to support their recovery and help them to come into a state to decide on reasonable and deliberate grounds if they are willing to cooperate with the authorities. However, questions may arise as to which extent the competent authorities have to 12 provide information. From a systematic perspective, the ‘informed decision’ of Article 6(1),71 relates to the information already mentioned in Article 5(1) focusing on the entitlements and benefits laid down in the Directive. This intimates that the victims of trafficking and illegal immigration are supposed to obtain predominantly information of the opportunities associated with the application of the Directive. As the Commission repeatedly referred to the risks the victims run by cooperating with the competent authorities72 and according to the explicit reference made in recital 11 of the Directive, it appears also necessary to instruct the third-country nationals concerned about the existing and prospective dangers entailed by their cooperation.

III. Treatments 1. Access to treatment referred to in Article 7 One very striking element of the Directive is that the third-country nationals 13 concerned do not only obtain special treatment after the (temporary) residence permit has been granted, but already before while enjoying the reflection period and awaiting the decision of the competent authorities if they obtain the residence permit foreseen under the Directive. The time period in which the third-country nationals can enjoy the advantages of the 14 Article 6(2)-treatment consists of two different deadlines. (1) First, it is limited to the duration of the reflection period as it is provided for in national law. (2) Then it is subsequently followed by the period of time the competent authorities decide if the offer of the third-country national concerned to cooperate appears sufficiently credible and examine whether all conditions for granting a residence permit pursuant to Article 8 of the Directive are met. If a third-country national concerned decides not to cooperate with the authorities after the reflection period expired, the access to treatment referred to in Article 7 ends in the moment he or she communicates this decision. The treatment referred to under Article 6(2) is extensively stipulated in Article 7 of 15 the Directive. It contains, for instance, standards of living capable of ensuring their subsistence and access to emergency medical treatment. Also special needs of the most vulnerable are provided for, which inter alia can also include psychological assistance. Moreover, the treatment under Article 7 of the Directive covers all safety 70

Recital 11 even uses the term ‘well-informed decision’. Emphasis added. 72 COM(2002) 71, p. 10 et seq. and 12; recital 11 of this Directive. 71

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and protection needs and it can also extend to translation and interpreting service and to free legal aid if envisaged under national law. 16 The treatment according to Article 6(2) in connection with Article 7 of the Directive is intended to enhance the victims’ chances to take an ‘informed decision’ and to allow them to recover physically and psychologically without providing incentives likely to encourage abuse.73 However, there has been considerable criticism with respect to an allegedly under-inclusive application of the Directive emphasising that the restrictive character of the Directive’s legal framework in many cases prevent third-country nationals concerned to enter into a cooperation with the competent authorities due to the weakness of their legal positions.74

2. No enforcement of expulsion order 17

In order to provide a status which ensures that the third-country nationals concerned cannot be expelled from the territory of the Member States during the reflection period, Article 6(2) safeguards that any expulsion order – if enacted by the competent authorities – cannot be enforced until the deadline has expired and no (temporary) residence permit pursuant to the Directive has been granted. Thereby, the authorities are obliged to guarantee the stay of the third-country nationals concerned on their territory until a negative decision has been taken by the competent authorities. However, this does not affect the lawfulness of the expulsion order itself.75 Even though it might contravene the general purpose of the Directive and it might also have a negative effect on the victim’s readiness to cooperate with the authorities, from the wording and structure of Article 6(2) it can be concluded that its issue would be lawful. In any case, most Member States’ laws explicitly prohibit the implementation of expulsion orders.76

IV. No entitlements 18

By enacting Article 6(3) the Member States pursued the intention to clarify the ‘nonstatus’ conveyed by the reflection period. As it was disputed in the Council if the residence permit stipulated in the Directive had to be qualified as an individual entitlement,77 the Commission emphasised in its original Proposal that the reflection period constitutes merely a ‘temporary respite’ without any formal legal status during which the victims’ residence in the territory of a Member State is tolerated until it is decided on their future status.78 Thereby, no formal subsequent entitlement is conferred upon the third-country nationals concerned which they can refer to in later stages of their stay.79 From an aliens law perspective, the third-country nationals concerned cannot deduct any legal advantages from having enjoyed the reflection period under Article 6 of the Directive. However, the stay previous to the issue or non-issue of a (temporary) residence permit during the waiting period constitutes a 73

COM(2002) 71, p. 12. Piotrowicz, IJRL 14 (2002), p. 263, 268 and 271; Boysen, Zeitschrift fu¨r Europarechtliche Studien 2008, p. 431, 448; see also COM(2010) 493, p. 10 and COM(2014) 635, p. 10 (‘A temporary residence permit, only valid for the duration of investigations or criminal proceedings, might not constitute an incentive strong enough for vulnerable individuals, …’). 75 COM(2002) 71, p. 12; also Piotrowicz, IJRL 14 (2002), p. 263, 269. 76 COM(2014) 635, p. 5, not in Bulgaria and in some other Member States, therefore, ‘protection from expulsion … might be problematic’. 77 See Article 8 MN 8 and 11 et seqq. 78 COM(2002) 71, p. 12. 79 COM(2002) 71, p. 12; Peers, EU Justice and Home Affairs Law, 3rd edn (OUP, 2011), no. 5.6, p. 274; Piotrowicz, IJRL 14 (2002), p. 263, 269. 74

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time of ‘lawful residence’ in the Member State as it is required by the European Court of Justice with respect to the Directive 2004/38/EC.80

V. Immediate termination As the wording of the Directive emphatically displays, the severance of all links and 19 contacts to the traffickers and smugglers is the first precondition for initiating the proceeding laid down in the Directive. All endeavours related to the reflection period would be rendered superfluous and futile if the third-country nationals concerned would still be in contact and under the influence of the traffickers or if they would subsequently renew the contact. In the latter case, Article 6(4) provides for the opportunity to terminate the reflection period ‘at any time’ if several conditions are met. The importance of this condition is underlined by the fact that the renewal of contact is also the first reason to withdraw the already issued residence permit pursuant to the Directive.81 The same measures can be taken if reasons of public policy and national security justify the termination of the reflection period. The provision of Article 6(4) is a discretionary provision as the use of the term ‘may’ 20 indicates. Therefore, the Member States are not obliged to transpose it which, as a result, only less than half of them did at first until 2007.82

1. Evidentiary requirements Facing the extremely negative consequences of a renewed contact with traffickers 21 and smugglers, the Member States have increased the evidentiary requirements to be established. The Directive stipulates that it has to be established that the person concerned ‘has actively, voluntarily and on his/her own initiative’ renewed the contact. By demanding this, the third-country nationals concerned enjoy a high degree of protection. Especially in those cases in which the trafficker approaches the victims in order to threaten or persuade them to finish the cooperation with the competent authorities the negative effects on the reflection period are limited. The conditions enumerated in Article 6(4) according to which a victim has to act 22 ‘actively, voluntarily and on his/her own initiative’ have to be fulfilled simultaneously in order to give the Member States the right to terminate the reflection or waiting period ‘at any time’. A contact was renewed ‘actively’, if the third-country national concerned took own actions toward the trafficker and was not merely approached him-/herself as he/she was remaining in a passive position. The term ‘voluntarily’ means that the third-country national concerned decided freely, without any coercion, threat or use of force to renew the contact with the trafficker. Finally, the phrase ‘on his/her own initiative’ corresponds with an action being commenced without any influence – not even a remote one – from other people. Especially the requirements of renewing a contact ‘voluntarily’ and ‘on his/her own initiative’ have the consequence that in all cases in which the traffickers originally attempts to get into contact with the victims the conditions for terminating the reflection period are not fulfilled. The three conditions might in some cases overlap, but it can be recognised that by 23 stipulating them, most notably, all those cases were ruled out in which the perpetrators take the initiative to approach their victims or in which they attempt to exert power or threat by contacting the victims or the victims’ family and friends. 80

See ECJ, Metock, C-127/08, EU:C:2008:335, para 53 and 58 et seq. See below Article 14 MN 4 et seqq. 82 Noll/Gunneflo, Odysseus Synthesis Report on the Directive 2004/81, p. 33 et seq. 81

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Moreover, by using the word ‘established’ Article 6(4) clarifies that mere allegations or unfounded assumptions are not sufficient to prove that the third-country national concerned renewed contact. Instead, it is required to provide evidentiary material leading to the conclusion that the victim took ‘active’ measures to renew the contact ‘voluntarily’ and ‘on his/her own initiative’. In rare cases even circumstantial evidence might be sufficient to establish the required conditions under Article 6(4). However, in those situations the lack of quality has to be equalised by the sheer number of proof.

2. Perpetrators of offences 25

The group of people to which the contact has to be renewed by the third-country nationals concerned are the persons who have committed the offences referred to in Article 2(b) and (c) of the Directive.83 Therefore, the perpetrators must have violated the offences stipulated in Article 1 and Article 2 of the Directive 2002/90/EC84 or in Article 2, Article 3 and Article 4 of the Directive 2011/36/EU.85

3. Reasons of public policy and protection of national security The terms ‘public policy’ and ‘national security’ are not explained in the Directive but several other directives provide for corresponding provisions.86 In general recourse may be taken to the principles developed by the European Court of Justice for the interpretation of the term ‘public policy’ in the former Directive 64/221/EEC concerning restrictions of free movement rights of EC workers87 and subsequently in Article 27 Free Movement Directive 2004/38/EC. 27 According to the ECJ the conditions of the ‘public policy’ reservation are met88 if the assessment under the ‘principle of proportionality’ is based ‘exclusively on the personal conduct of the individual’ which shall represent a ‘genuine, present and sufficiently serious threat affecting the fundamental interests of the society’.89 In conclusion, this leads to a generally narrow interpretation of the public policy-reservation in the context of the Directive 2004/81/EC. 28 In addition, the ‘national security’-aspect extends the application also to situations in which issues of domestic security concerns, foreign relations and sovereign immunity play a decisive role. Especially, in times of terrorist networks and organised crime the relatively narrow application of the ‘public policy’ reservation which is mostly limited to the domestic situation might in some cases not be enough to cover all relevant threats. 26

83

See for details above Article 2 MN 3 et seqq. COM(2002) 71, p. 10; see also recital 8 of this Directive. 85 On the former Framework Decision 2002/629/JHA, see Report from the Commission to the Council and the European Parliament, Based on Article 10 of the Framework Decision 2002/629/JHA, COM(2006) 187; see also recital 8 of this Directive. 86 E. g. Hailbronner/Klarmann, Directive 2003/86/EC Article 6 MN 4. 87 Council Directive 64/221/EEC (OJ 1964 B 56/850) on the coordination of the special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health. 88 ECJ, Van Duyn, C-41/74, EU:C:1974:133, para 24; ECJ, Rutili, C-36/75, EU:C:1975:137, para 28; ECJ, Bouchereau, C-30/77, EU:C:1977:172, para 35; ECJ, Orfanopoulos and Oliveri, C-482/01 u. C-493/01, EU:C:2004:262, para 66. 89 See ECJ, Bouchereau, C-30/77, EU:C:1977:172, para 35. 84

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Article 7 Treatment granted before the issue of the residence permit 1. Member States shall ensure that the third-country nationals concerned who do not have sufficient resources are granted standards of living capable of ensuring their subsistence and access to emergency medical treatment. They shall attend to the special needs of the most vulnerable, including, where appropriate and if provided by national law, psychological assistance. 2. Member States shall take due account of the safety and protection needs of the third-country nationals concerned when applying this Directive, in accordance with national law. 3. Member States shall provide the third-country nationals concerned, where appropriate, with translation and interpreting services. 4. Member States may provide the third-country nationals concerned with free legal aid, if established and under the conditions set by national law. Content I. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Sufficient resources, Article 7(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. Lacking capacity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2. Subsistence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3. Access to emergency medical treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 4. Special needs of the most vulnerable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 a) General application.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 b) Psychological assistance.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 III. Safety and protection, Article 7(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 IV. Translation and interpreting services, Article 7(3). . . . . . . . . . . . . . . . . . . . . . . . . . . 10 V. Free legal aid, Article 7(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

I. General remarks Article 7 lays down the treatment third-country nationals are granted before the 1 (temporary) residence permit is issued according to the Directive. The purpose of this provision is to ensure a minimum standard of living enabling the victims of trafficking and illegal immigration to reach irrespective of their vulnerable state an ‘informed decision’90 and to prevent that advantage is being taken of their vulnerability. The measures should support victims to come out of hiding in order to avoid the risk of reestablishing ties with traffickers and smugglers.91 The ‘package of measures’ is a complementary mixture of mandatory and discretionary assistance.92

II. Sufficient resources, Article 7(1) 1. Lacking capacity The first important precondition for granting the benefits referred to in Article 7(1) 2 was that third-country nationals concerned would have to lack the capacity to cover the 90

See for further details on the term ‘informed decision’ Article 6 MN 11 et seqq. COM(2002) 71, p. 13. 92 For the drafting history of Article 7, see Kau, ‘Human Trafficking Directive 2004/81/EC’ in: Hailbronner (ed), EU Immigration and Asylum Law – Commentary, 1st edn (C.H. Beck/Hart/Nomos, 2010), Article 7 MN 2 et seqq. 91

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costs for their living and for medical treatment. Bearing in mind the drastic differences with respect to living conditions and financial opportunities between the typical countries of origin and the Member States of the EU lead to the conclusion that in most cases a lacking financial capacity can be assumed. As a result, most third-country nationals coming to Europe will lack sufficient resources to ensure their subsistence.

2. Subsistence 3

As a main point Article 7(1) provides for ‘standards of living capable of ensuring their subsistence’. The Directive ultimately covers only ‘subsistence’. Article 7(1) encompasses all aspects required to safeguard human life with respect to human dignity. The term ‘human dignity’ has been used in Article 1 CFR providing that ‘[H]uman dignity is inviolable’ and ‘must be respected and protected’. Additionally, recital 6 also indicates that the Directive ‘respects fundamental rights and complies with the principles recognised … by the Charter of Fundamental Rights’. One essential part of the guarantee of human dignity is an individual right to the means required to live above the margin of subsistence.93 Therefore, it would violate the victims’ individual rights if they were not granted financial or other means guaranteeing the minimum income needed to exist with respect to housing, food and clothes. At its heart, all aforementioned requirements can also be provided for in specific facilities, shelters or registration centers. Since Article 7(1) comprises only minimum requirements the Member States can discretionarily grant means ensuring higher living standards.

3. Access to emergency medical treatment The term ‘emergency medical treatment’ indicates that only those medical treatments are included which appear by accident, surprise or as a result of severe pre-existing conditions and which require immediate counter measures which cannot be delayed. As the Commission put it, emergency treatment is ‘medical care that cannot wait … which must be provided to forestall an emergency’.94 Therefore, only illnesses occurring without prior notice or as a consequence from earlier severe pathological conditions constituting an imminent threat to life or health justify emergency medical treatment. In this context, the term ‘medical treatment’ comprises all necessary forms of medical attendance and use of equipment, especially pharmaceuticals which are required to treat the illnesses that have arisen. However, the term ‘emergency treatment’ refers to a situation which does not allow any postponement, so that any kind of treatment which easily and without causing any durable harm could be caught up after the ‘relevant national proceedings’ are completed, is not covered by Article 7(1). 5 Particularly the only limited access to emergency medical treatment and the exclusion of further medical care has led to considerable criticism. If the Member States really intended to give incentives for the victims to enter into cooperations – so the reproaching remarks – it was rather petty and therefore not very inviting to offer only the minimum medical treatment bearing in mind the life-threatening risks of retribution and reprisal the third-country nationals run.95 The Commission adds in its 2010 report that ‘giving victims more effective access to information on the opportunities that are available, the Directive’s profile would raise and work better.96 4

93 Ho ¨ fling, in: Tettinger/Stern (eds), Ko¨lner Gemeinschaftskommentar, Europa¨ische Grundrechtecharta (C.H. Beck, 2006), Article 1, MN 26. 94 COM(2002) 71, p. 13. 95 Piotrowicz, IJRL 14 (2002), p. 263, 268. 96 COM(2010) 493, p. 10 (conclusions).

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4. Special needs of the most vulnerable a) General application. It can be inferred from other provisions of the Directive that 6 the term ‘special needs of the most vulnerable’ encompasses treatments and specialised facilities for minors, pregnant women, victims of sexual and other forms of violence, disabled persons and similar vulnerable persons. As a result, the Member States are obliged to foresee flexible provisions in order to be able to react to special needs of most vulnerable persons. b) Psychological assistance. Article 7(1) extends to ‘psychological assistance’ with 7 two restrictions: First, the assistance has to be ‘appropriate’ with regard to medical requirements. This means that ‘psychological assistance’ is an exceptional treatment only to be advised if indicated from a medical point of view. The second restriction stipulates that ‘psychological assistance’ is only required if ‘provided by national law’. Therefore, Article 7(1) is only a discretionary provision as far as ‘psychological assistance’ is concerned. As a result, there is no entitlement if the Member States do not provide for access to ‘psychological assistance’ in national legislation.

III. Safety and protection, Article 7(2) Furthermore, the Member States agreed upon inserting Article 7(2) taking into due 8 account the ‘safety and protection needs’ of the third-country nationals concerned. However, this obligation operates under the restriction of being ‘in accordance with national law’. In sum, the decision to what extent and under what circumstances the Member States 9 have to provide support with respect to safety and protection issues remains mostly with the investigation and prosecution authorities. In this context, Article 7(2) resembles a fig leaf purporting to focus on the safety and protection of the most vulnerable victims of trafficking and illegal immigration, while due to restrictions only very limited measures – if any – are demanded on a mandatory basis from the Member States. This distorted balance between the enormous risks of retribution for the victim of trafficking related to a cooperation with the competent authorities, on the one side, and the illdeveloped protection scheme and rather vague wording of Article 7(2), on the other side, leaving it by and large to the Member States to take ‘due account’ of the safety and protection issues has been identified to be one of the principle flaws of the Directive.97

IV. Translation and interpreting services, Article 7(3) Since the main purpose of the benefits granted according to Article 7 of the Directive 10 is supposed to enhance the victim’s chances to take an ‘informed decision’ irrespective of his or her vulnerable situation,98 it is an indispensable requirement to provide the necessary information (Article 5(2)) in a language he or she can understand. This is only possible if the third-country nationals concerned have access to translation and interpreting services.

97 98

Piotrowicz, IJRL 14 (2002), p. 263, 268 et seqq. COM(2002) 71, p. 13

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V. Free legal aid, Article 7(4) 11

Whereas the ‘translation and interpreting services’ remained mandatory according to Article 7(3), the ‘access to free legal aid’ is stipulated in a paragraph of its own and phrased as a may clause and, thereby, made discretionary to the Member States. The reason for this lies in the nature of the (temporary) residence permit granted pursuant to the Directive as being predominantly an instrument to combat trafficking in human beings rather than being an instrument of humanitarian aid. Bearing this in mind, the access to ‘free legal aid’ forms no essential part of the legal framework of the Directive since it was not primarily intended to enhance individual rights of thirdcountry nationals concerned.

Article 8 Issue and renewal of the residence permit 1. After the expiry of the reflection period, or earlier if the competent authorities are of the view that the third-country national concerned has already fulfilled the criterion set out in subparagraph (b), Member States shall consider: (a) the opportunity presented by prolonging his/her stay on its territory for the investigations or the judicial proceedings, and (b) whether he/she has shown a clear intention to cooperate and (c) whether he/she has severed all relations with those suspected of acts that might be included among the offences referred to in Article 2(b) and (c). 2. For the issue of the residence permit and without prejudice to the reasons relating to public policy and to the protection of national security, the fulfilment of the conditions referred to in paragraph 1 shall be required. 3. Without prejudice to the provisions on withdrawal referred to in Article 14, the residence permit shall be valid for at least six months. It shall be renewed if the conditions set out in paragraph 2 of this Article continue to be satisfied. Content I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Criteria for issue, Article 8(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Opportunity presented (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Clear intention to cooperate (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Severe all relations with perpetrators (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Time of consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Additional criteria. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Entitlement or discretionary decision?, Article 8(2) . . . . . . . . . . . . . . . . . . . . . . . . IV. Reservations, Article 8(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Duration, Article 8(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI. Renewal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 4 5 6 7 8 9 10 11

I. General remarks 1

Article 8(1)(d) to (c) sets out the complementary criteria required to be fulfilled in order to issue a (temporary) residence permit according to the Directive. Whereas the identification of the probable victims, providing information and conceding a reflection period constitute mere preconditions for the authorities’ later decision, the issue of the 544

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residence permit is the crucial and decisive point in which the conceptual principles of the Directive are put to a test. Moreover, Article 8(2) refers to the reservations by reasons relating to ‘public policy’ and ‘national security’. Eventually, Article 8(3) comprises the rules on the validity of the residence permit and the conditions for its renewal.99

II. Criteria for issue, Article 8(1) Article 8(1) enumerates three criteria which have to be fulfilled in order to issue a 2 residence permit pursuant to the Directive. At any rate, the Member States are not obliged to demand that all criteria are met.

1. Opportunity presented (a) The first criterion requires that the Member States shall consider ‘the opportunity 3 presented by the victim’s stay on the territory for the investigations or judicial proceedings’. Since this wording is fairly cautious, the Proposal’s original language requiring the person in question to be ‘useful’100 in terms of the commenced proceedings remains relevant.101 In any case, an assessment has to take place with respect to the probable benefit related to a prolonged stay of the third-country national concerned in order to be available for investigation and prosecution purposes. In doing so, the competent authorities102 have to evaluate the relevant conditions for a person’s contribution to the upcoming proceedings. In this context have to be considered, for instance, the overall probability to complete the investigations and proceedings successfully, the evidentiary value of his/her testimony, the intensity of his/her experiences,103 the probable capability of being a witness including conceivable influences by the perpetrators, the overall meaning of the trial in question, and the progress beings made in investigations with his/her support. However, this ‘doctrine of usefulness’ as being the premise of Article 8(1)(a) has been criticised to some extent.104

2. Clear intention to cooperate (b) Additionally, the third-country national concerned must show a convincing readi- 4 ness to cooperate with the competent authorities. The clear intention has to be assessed by referring to his or her overall behaviour beginning with the apprehension and identification as a person falling into the scope of the Directive. Doubts with respect to the intention to cooperate can be founded, for example, if the person gives contradictory testimonies, if he/she first opts against a cooperation or changes his/her mind pertaining to the readiness to cooperate several times.

3. Severe all relations with perpetrators (c) As already mentioned with respect to Article 6 of the Directive the complete severance 5 of all links with traffickers and smugglers is a key precondition of any cooperation with 99 For the drafting history of Article 8, see Kau, ‘Human Trafficking Directive 2004/81/EC’ in: Hailbronner (ed), EU Immigration and Asylum Law – Commentary, 1st edn (C.H. Beck/Hart/Nomos, 2010), Article 8 MN 2 et seqq. 100 COM(2002), 71, p. 21; Council doc. no. 11698/03 of 28 August 2003, p. 10. 101 Raffaelli, GLJ 10 (2009), p. 205, 209. 102 For which authorities can be assessed as ‘competent’, see Article 5 of this Directive, MN 7 et seq. 103 As Piotrowicz surmises ‘the more vulnerable the victim is, the more useful she will be, as she will have lots more evidence of maltreatment to give.’ Piotrowicz, IJRL 14 (2002), p. 263, 269. 104 Raffaelli, GLJ 10 (2009), p. 205, 208 et seq.

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the authorities. Therefore, it has to be considered by the authorities as to whether the person concerned has acted appropriately. If there are any reasonable grounds to presume that the third-country national concerned did not severe all relations with the perpetrators of the offences referred to in Directive 2002/90/EC or Directive 2011/36/EU no residence permit under the Directives has to be granted. Only in untypical situations, the Member States might be inclined to issue residence permits pursuant to the Directive anyway since the person in question did not keep the contact with the traffickers and smugglers on his/her own initiative. In sum, it is usually sufficient for fulfilling the requirements of Article 8(1)(c) that the third-country national concerned has taken reasonable measures in order to severe all links with the traffickers.

4. Time of consideration 6

The recent provision of Article 8 of the Directive stipulates no precise period of time. However, it can be inferred from the text of the provision that the authorities’ decision as to whether or not to grant a residence permit is supposed to follow immediately without delay at the latest after the end of the reflection period.

5. Additional criteria 7

If programmes and schemes aimed at the recovery of a normal social life exist or are newly created according to Article 12 the issue or renewal of a residence permit can be made conditional upon the participation in the said programmes or schemes by discretion of the Member States. Thereby, Article 12(2) comprises a possibility to require additional criteria to the issue and renewal in the case that programmes or schemes exist.

III. Entitlement or discretionary decision?, Article 8(2) 8

While the wording of Article 8(2) underwent significant alterations, the change with respect to one key element of the original draft was especially important. Instead of providing that the residence permit ‘shall be issued’,105 the final Article 8(2) of the Directive states only that ‘[F]or the issue of the residence permit …, the fulfilment of the conditions referred to in paragraph 1 shall be required’. Even if the term ‘shall’ was used in both provisions, there are good reasons to conclude that the third-country nationals concerned are not entitled to obtain a residence permit according to the provision’s final wording even if all conditions are fulfilled.106 On the contrary, the language of Article 8(2) states simply that the issue of the residence permit depends on the fulfilment of conditions referred to in Article 8(1) without indicating that a thirdcountry national has an individual right to demand the issue if the conditions are met.107

IV. Reservations, Article 8(2) 9

Resembling the language of Article 6(4) also Article 8(2) comprises reservations with respect to ‘reasons relating to public policy and to the protection of national security’. 105

Emphasis added, see COM(2002) 71, p. 21. See also Peers, EU Justice and Home Affairs Law, 3rd edn (OUP, 2011), no. 5.6, p. 274 (‘However, the Directive does not appear to create a right to a permit if the conditions are met.’); Piotrowicz, IJRL 14 (2002), p. 263, 269 (‘…, then a six-month residences permit can be issued’), emphasis added. 107 Boeles/den Heijer et al., European Migration Law, p. 367 (‘If these conditions are fulfilled a residence permit can be issued, …’) and p. 369 et seq. (‘…, the directive does not provide a right to be granted a residence permit.’). 106

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Again, the terms ‘public policy’ and ‘national security’ are not explained in the Directive while several other directives provide for corresponding provisions.108 Again the principles developed by the European Court of Justice for the interpretation of the term ‘public policy’ in the former Directive 64/221/EEC109 and subsequently in the Free Movement Directive 2004/38/EC are applicable.110

V. Duration, Article 8(3) The provision of the first sentence of Article 8(3) is for several reasons remarkable. 10 Albeit it is adopted to stipulate the duration of the validity, it comprises an explicit reference to the legal opportunity to withdraw the residence permit according to Article 14 of the Directive. By doing so, the Member States indicate straight from the outset that the residence permit granted according to the Directive is only employed under the constant restriction of its impending withdrawal. As widely criticized,111 the first sentence of Article 8(3) emphasises again that the incentive of granting a residence permit is offered only reluctantly and under numerous restrictions, thereby, conveying the impression that the Directive does not equally serve the victims’ interests but predominantly the interests of the investigation and prosecution authorities.

VI. Renewal According to the second sentence of Article 8(3) the Member States are obliged to 11 provide for the opportunity to renew the residence permit in the case that the conditions required for its initial issue set out in Article 8(1) are still given. In contrast to the provision on the initial residence permit encompassing a period of validity of ‘at least six months’, the second sentence of Article 8(3) does not stipulate a precise period of validity in the case of renewal. Due to this, the validity of a renewed residence permit has to be orientated on the purposes set out in the Directive and its drafting history. As indicated several times in different provisions among them also Article 8(1)(a), the Directive is predominantly supposed to ensure the cooperation of third-country national concerned in order to combat trafficking in human beings and illegal immigration. Beside this, the original draft of the Commission focuses on the ‘usefulness of the victim’s presence’ for the investigations or court proceedings.112 Therefore, the renewal has to be consistent with the prospective duration of the investigations and/or judicial proceedings against the traffickers and smugglers. After the initial residence permit has expired, the competent authorities have to evaluate the state of the proceedings including the continuing relevance of the person in question as a witness and estimate how long the proceedings will presumably continue. The duration of the renewed residence permit has to cover the expected time period necessary to conclude the proceedings or, in case this is considerably shorter, the time period the person’s attendance is deemed necessary to give testimony and appear in court. 108

E. g. Hailbronner/Klarmann, Directive 2003/86/EC, Article 6, MN 1 et seqq. Council Directive 64/221/EEC (OJ 1964 B 56/850) on the coordination of the special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health. 110 ECJ, Van Duyn, C-41/74, EU:C:1974:133, para 24; ECJ, Rutili, C-36/75, EU:C:1975:137, para 28; ECJ, Bouchereau, C-30/77, EU:C:1977:172, para 35; ECJ, Orfanopoulos and Oliveri, C-482/01 u. C-493/01, EU:C:2004:262, para 66. See for further information the interpretation of Article 6 MN 26 et seqq. 111 Boysen, Zeitschrift fu ¨ r Europarechtliche Studien 2008, p. 431, 446 et seqq.; Piotrowicz, IJRL 14 (2002), p. 263, 268 and 271. 112 COM(2002) 71, p. 13. 109

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Whereas the Member States carefully avoided to adopt an individual right to grant a residence permit pursuant to Article 8(2),113 the wording of the second sentence of Article 8(3) on the renewal of the residence permit indicates otherwise. As the phrase ‘[I]t shall be renewed if …’ implies that an individual right to renewal is stipulated.114 This impression is also supported by the drafting history. While several delegations advocated a change of Article 8(2) in order to avoid stipulating an entitlement to issuing a residence permit no comparable efforts have been noted pertaining to the second sentence of Article 8(3) and the renewal of a residence permit.115

CHAPTER III TREATMENT OF HOLDERS OF THE RESIDENCE PERMIT Article 9 Treatment granted after the issue of the residence permit 1. Member States shall ensure that holders of a residence permit who do not have sufficient resources are granted at least the same treatment provided for in Article 7. 2. Member States shall provide necessary medical or other assistance to the thirdcountry nationals concerned, who do not have sufficient resources and have special needs, such as pregnant women, the disabled or victims of sexual violence or other forms of violence and, if Member States have recourse to the option provided for in Article 3(3), minors. Content I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Equal treatment as Article 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Special needs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Personal scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Medical and other assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 4 4 7

I. General remarks 1

Article 9(1) provides that third-country nationals who were granted residence permits according to the Directive receive at least equal treatment as provided under Article 7 to those being in the waiting period. In addition, the Member States are obliged to provide medical treatment and support to third-country nationals concerned with special needs if they do not dispose of sufficient resources.116

113

See above MN 8. Boeles/den Heijer et al., European Migration Law, p. 367 (‘If these conditions are fulfilled a residence permit can be issued,… and must be renewed if the three conditions continue to be satisfied.’), emphasis added. 115 For the drafting history of the issue of an individual right in Article 8, see Kau, ‘Human Trafficking Directive 2004/81/EC’ in: Hailbronner (ed), EU Immigration and Asylum Law – Commentary, 1st edn (C.H. Beck/Hart/Nomos, 2010), Article 8 MN 24. 116 For the drafting history of Article 9, see Kau, ‘Human Trafficking Directive 2004/81/EC’ in: Hailbronner (ed), EU Immigration and Asylum Law – Commentary, 1st edn (C.H. Beck/Hart/Nomos, 2010), Article 9 MN 2 et seqq. 114

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II. Equal treatment as Article 7 According to Article 9(1) the Member States are obliged to grant ‘at least’ the same 2 treatment provided for in Article 7 to persons who have been granted the residence permit pursuant to the Directive. As provided for in Article 7, also the treatment ‘after the issue of the residence permit’ is only required if the third-country national concerned does not dispose of sufficient resources. This is also true for the assistance to third-country nationals with ‘special needs’ according to Article 9(2). However, it was already stated in connection with Article 7 that in most cases third-country nationals who have been the victims of trafficking or illegal immigration will lack sufficient financial resources to cover their expenses.117 After all, third-country nationals are granted as a minimum the same treatment as 3 stipulated for persons in the waiting period before the issue of the residence permit. This includes, inter alia, appropriate means to provide ‘standards of living capable of ensuring their subsistence’118 and ‘emergency medical treatment’. As the term ‘at least’ indicates the Member States are generally free to provide for a more generous treatment on grounds of national legislation.

III. Special needs 1. Personal scope First, the Directive names several groups of people falling in the category of persons 4 with special needs. According to the wording using the term ‘such as’ the named categories are only examples and the enumeration is non-exhaustive.119 Therefore, also further groups with special needs can require to be granted the ‘necessary medical treatment’ and ‘other assistance’. This includes, for instance, also senior citizens, chronically ill persons and transsexuals. One group of persons with ‘special needs’ which does, however, not falls into the personal scope of the Directive are minors in the case that the respective Member State has not opted to include them in the application of the Directive (Article 3(3)). Although the wording of the first part of Article 9(2) would, on principle, allow to extent the application also to minors the systematic context of Article 3(3) of the Directive prohibit this circumvention of the envisaged legal framework. While the category of ‘pregnant women’ covers only a very limited, fairly easy to 5 define group of persons, the category of ‘the disabled’ extents to persons with all forms of physical and mental illness substantially constraining the affected persons. Similarly, the term ‘victims of sexual violence or other forms of violence’ encompasses every imaginable form of violence affecting human beings physically or mentally. As a consequence of the legal framework established by Article 3(3) and Article 10, 6 minors are also included in the treatment granted after the residence permit has been issued if the Member States have opted in favour of the application of the Directive. If the Member States decide against the application there can be no indirect application by circumventing Article 3(3) of the Directive.

117

See Article 7 MN 2. See Article 7 MN 3. 119 COM(2002) 71, p. 14 (‘… gives examples …’). 118

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2. Medical and other assistance The final wording of Article 9(2) engendered some limitation with respect to the treatment granted to third-country nationals with special needs. On a prima facie basis, the wording ‘necessary medical ‘or ‘other forms of assistance’ intimates a narrow understanding of Article 9(2). The textual interpretation, however, leads to a different conclusion. At its heart, it can be assumed that in treating persons with special needs who have suffered, for example, from violence, rape or who are in vulnerable situations and have even remote chances of healing will render medical assistance ‘necessary’ in the sense of Article 9(2). Ultimately, the term ‘medical assistance’ is very wide covering every medical treatment with respect to physical illness. As the terminology of Article 7 and Article 9 depict psychological assistance is not encompassed by the term ‘medical assistance’ or ‘medical cure’. 8 In addition, the term ‘other assistance’ contains every reasonable treatment capable of enhancing the personal situation of individuals with special needs excluding medical assistance. Generally, the possible content of the term ‘other assistance’ has to be derived from the needs the third-country nationals concerned are confronted with in their specific situation. Beside ‘necessary medical assistance’ victims of trafficking might require, most notably, psychological assistance which in the legal framework of the Directive is not contained by the terms ‘medical care’ or ‘medical assistance’. 7

Article 10 Minors If Member States have recourse to the option provided for in Article 3(3), the following provisions shall apply: (a) Member States shall take due account of the best interests of the child when applying this Directive. They shall ensure that the procedure is appropriate to the age and maturity of the child. In particular, if they consider that it is in the best interest of the child, they may extend the reflection period. (b) Member States shall ensure that minors have access to the educational system under the same conditions as nationals. Member States may stipulate that such access must be limited to the public education system. (c) In the case of third-country nationals who are unaccompanied minors, Member States shall take the necessary steps to establish their identity, nationality and the fact that they are unaccompanied. They shall make every effort to locate their families as quickly as possible and take the necessary steps immediately to ensure legal representation, including representation in criminal proceedings, if necessary, in accordance with national law. Content I. II. III. IV.

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General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Best interest of the child (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Access to educational system (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Unaccompanied minors (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Establishment of identity and nationality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Locating the family. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Legal representation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. General remarks In the case that the Directive is applicable also to minors Article 10 establishes several 1 basic principles and specific rules guiding the treatment of minors who have been victims of trafficking or illegal immigration. At any rate, the application depends on the discretionary decision laid down in Article 3(3) of the Directive requiring that a Member State has to decide in favour of making the Directive applicable to minors.120

II. Best interest of the child (a) The term ‘best interest of the child’ derives from the UN Convention on the Rights 2 of the Child of 20 November 1989121 and from Article 24 CFR. Similar to the application of the Charter of Fundamental Rights, also the ‘best interest of the child’ according to Article 10(a) is not the only aspect which has to be considered while applying the Directive.122 Since Article 10(a) explicitly demands only to take ‘due account’ of the ‘best interest of the child’ it is possible to consider also other interests. However, Article 10(a) prohibits to disregard the ‘best interest of the child’ in cases where minors are involved. This means that if other interests are ignored this does not necessarily affect the validity of the decision whereas disregarding or not adequately considering the ‘best interest of the child’ renders the application to be severely flawed and in most cases even void. ‘The best interest of the child’ may imply specific adaptations in terms of procedure 3 and especially with respect to the period of reflection.123 Generally speaking, the ‘best interest of the child’ is a very individual yardstick which cannot be shaped for every case alike but which demands considering the conditions and circumstances of every individual case.124 Therefore, Article 10(a) does not demand that the ‘best interest of the child’ prevails in every course of consideration but it requires the Member States with binding effect to take precautions in national legislation to ensure that it is adequately regarded. In this context, Article 10(a) mentions that the procedure has to be appropriate to the ‘age and maturity’ of the child which probably points to the procedures related to the Directive rather than the criminal procedures against traffickers and smugglers.125 As the ensuing term ‘in particular’ indicates, the procedure and the duration of the reflection period are only examples in which the ‘best interest of the child’ has to be regarded appropriately. This corresponds with the travaux pre´paratoires of the UN Convention and the subjectivity of the standard to which the term ‘best 120

See Article 3 MN 6. Available at http://www.ohchr.org/en/professionalinterest/pages/crc.aspx (last accessed: 8 April 2015). 122 Ennuschat, in: Tettinger/Stern (eds), Ko ¨ lner Gemeinschaftskommentar, Europa¨ische Grundrechtecharta (C.H. Beck, 2006), Article 24 MN 18. 123 COM(2002) 71, p. 15. 124 See Breen, The standard of the best interest of the child – a western tradition in international and comparative law (M. Nijhoff Publishers, 2002), p. 43 et seqq.; Freeman, Article 3: the best interest of the child, in: Alen et al. (eds), A Commentary on the United Nations Convention on the Rights of the Child (M. Nijhoff Publisher, 2007), p. 27 et seqq.; Detrick, A Commentary on the United Nations Convention on the Rights of the Child (M. Nijhoff Publishers, 1999), Article 3 no. 2.3 ‘Criticism’, p. 88 (‘… open-ended or indeterminate …’): Alston/Gilmour-Walsh, The Best Interest of the Child: Toward a Synthesis of Children’s Rights and Cultural Values, Innocenti Studies 1996, p. 2; Alen et al. (eds), The UN Children’s Rights Convention – theory meets practice (Intersentia, 2007), p. 98 and 403 et seqq.; Lorz, Der Vorrang des Kindeswohls nach Article 3 der UN-Kinderrechtskonvention in der deutschen Umsetzung (AGJ, 2003), see also Schmahl, Kinderrechtskonvention – Kommentar (Nomos, 2013). 125 Noll/Gunneflo, Odysseus Synthesis Report on the Directive 2004/81, p. 21. 121

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interest of the child’ contains the minor’s ‘all-around development’ including physical, mental, spiritual, moral and social aspects of the personality.126

III. Access to educational system (b) 4

Also Article 10(b) providing for access to education under the same conditions as nationals of the host country refers to the UN Convention on the Rights of the Child whose Article 28 establishes a right to education on the basis of equal opportunity.127 Since the procedures provided for in the Directive will take a considerable period of time, the Member States have to ensure that minors are able to pursue their educational career in the meantime. The limitation of the second sentence of Article 10(b) to the public school system relates to the different obligations of private and public school and the autonomous legal status of private institutions. In several Member States a compelled access to private schools would entail intricate legal issues and require the authorities in charge to cover the tuition for the minors falling into the scope of the Direction.

IV. Unaccompanied minors (c) 5

The treatment of unaccompanied minors is coupled with a number of issues which have to be addressed by the Member States. The provision of Article 10(c) rests on the premises of the Council Resolution of 26 June 1997128 on unaccompanied minors who are nationals of third countries.129

1. Establishment of identity and nationality Article 10(c) of the Directive requires the Member States to take the necessary steps to establish identity and nationality of the unaccompanied minors. Additionally, they have to establish the fact that they are unaccompanied. The information on the minor’s identity and situation can be obtained by various means, in particular by means of an appropriate interview, which is supposed to be conducted as soon as possible and in a manner appropriate to his/her age. Furthermore, the information obtained should be ‘effectively documented’ since early information may in particular enhance the prospects of a family reunification. 7 In general, it is not entirely clear if an establishment of identity does not usually comprise the establishment of nationality. For interpretation purposes the subject of ‘nationality’ will be treated as the subject of ‘identity’ is treated. Also the review of the fact if the minor at hand is really unaccompanied has to be thoroughly conducted with respect to the answers given in the interview describing the experiences made since leaving the country of origin. Additionally, the circumstances of the minor’s apprehension and his/her associates at this moment provide worthwhile evidence pertaining to the issue of being unaccompanied or not. 6

126 See Detrick, A Commentary on the United Nations Convention on the Rights of the Child (M. Nijhoff Publishers, 1999), Article 3 no. 2.3 ‘Criticism’, p. 89; Dorsch, Die Konvention der Vereinten Nationen u¨ber die Rechte des Kindes (Duncker & Humblot, 1994), p. 106 et seq. 127 Detrick, A Commentary on the United Nations Convention on the Rights of the Child (M. Nijhoff Publishers, 1999), Article 28 no. 10 ‘Equal Opportunity’, p. 485 et seq. 128 OJ 1997 C 221/23. 129 COM(2002) 71, p. 15.

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Art. 11

Human Trafficking Directive 2004/81/EC

Part C IV

2. Locating the family Since the status of an unaccompanied minor belongs to the most vulnerable category 8 of persons in terms of trafficking in human beings, the competent authorities have to make great efforts to locate the respective families ‘as quickly as possible’. Therefore, it can be reasonably presumed that also the efforts to locate the minor’s family are meant to be conducted irrespective of their influence on the current applications

3. Legal representation Beside the other requirements in dealing with an unaccompanied minor the Member 9 States are also obliged to ‘ensure legal representation … in accordance with national law’. Therefore, it remains with the Member States to provide national rules on legal representation. With respect to Article 10(c) the term ‘in accordance with national law’ does not 10 constitute a full fledged legal reservation leaving it on the merits to the Member States to provide for legal representation. One exception in this regard applies to the ‘necessary’ representation in criminal proceedings which has to be contained in the Member States’ provisions. Beside this, the Member States are free on how to establish a legal representation of unaccompanied minors.

Article 11 Work, vocational training and education 1. Member States shall define the rules under which holders of the residence permit shall be authorised to have access to the labour market, to vocational training and education. Such access shall be limited to the duration of the residence permit. 2. The conditions and the procedures for authorising access to the labour market, to vocational training and education shall be determined, under the national legislation, by the competent authorities. Content I. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Benefits, Article 11(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Access to labour market . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Access to vocational training and education. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Conditions and procedures, Article 11(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 4 5 7

I. General remarks Article 11(1) provides for the benefits coupled with the issue of the residence permit 1 in addition to the medical and special needs treatment referred to in Article 9(1). Moreover, Article 11(2) addresses the conditions and procedures assigned to the competent authorities under national law.130

130 For the drafting history of Article 11, see Kau, ‘Human Trafficking Directive 2004/81/EC’ in: Hailbronner (ed), EU Immigration and Asylum Law – Commentary, 1st edn (C.H. Beck/Hart/Nomos, 2010), Article 11 MN 2 et seqq.

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II. Benefits, Article 11(1) The purpose of Article 11 was that the third-country nationals concerned were supposed to have the opportunity to ‘put their illegal past behind them and gain independence from the networks of traffickers and smugglers’.131 3 As the Member States paid heed to remain in control of the access rights, Article 11(1) leaves it to them to define and specify the rules under which the holders of residence permits shall be authorised to have access. Therefore, the extent to which access is granted depends solely on the discretionary decisions of the Member States, while the fact that access has to be granted is enshrined in Article 11(1) on a compulsory basis. The transposition of Article 11 has to be conducted in a fashion offering general access to the labour market, to vocational training and education, without arbitrarily or capriciously preventing holders of residence permits under this Directive from exercising their rights enshrined in Article 11(1). However, this leads to the inference that the access rights can be restricted if sufficiently reasonable grounds exist. 2

1. Access to labour market 4

The access to the labour market was deemed by the Commission to enable the thirdcountry nationals concerned to earn their living and thereby establish, entirely or in part, their own basis for a living.132 With respect to a previous labour or sexual exploitation by smugglers and traffickers the access to the labour market is essential for acquiring independence on a long-term perspective.

2. Access to vocational training and education Vocational training and education should enable the holders of residence permits to acquire the means to earn a living.133 Therefore, the access to vocational training and education, though enumerated second and third, in fact precede the access to the labour market since a lack of speaking the host country’s language and a lack of education impair the access to the general labour market by considerably reducing the scale of activities to be fulfilled. 6 The extent of access to employment, vocational training and education has engendered considerable criticism since it was assumed that the individual entitlements in this context were ill-developed and provided not effective incentives for third-country nationals having been subject to trafficking in human beings or illegal immigration to decide in favour of a cooperation with the competent authorities. Especially, Article 11(1) was criticised as being too petty and too much dependent from the Member States legislative willingness to convince the persons in question to take the considerable risk of retribution and reprisal related to a cooperation against traffickers and smugglers.134 Even though the Commission concedes in its 2010 report that the Directive’s ‘impact does appear insufficient in the light of the overall data on victims of trafficking in the EU’,135 it obviously does not realise the true reasons for its shortcomings. 5

131

COM(2002) 71, p. 14. COM(2002) 71, p. 14. 133 COM(2002) 71, p. 14. 134 Piotrowicz, IJRL 14 (2002), p. 263, 264 and 268. See also Opinion no. 4/2009 of the Group of Experts on Trafficking in Human Beings, 16 June 2009, p. 5. 135 COM(2010) 493, p. 10 (conclusions). 132

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Art. 12

Human Trafficking Directive 2004/81/EC

Part C IV

III. Conditions and procedures, Article 11(2) While Article 11(1) provided that the conditions under which the holders of resi- 7 dence permits were to be authorised to have access to employment, vocational training and education would have to be laid down under national law, Article 11(2) stipulated that the conditions and procedures for authorising access by the ‘competent authorities’ were also to be determined under national legislation. Therefore, Article 11(2) represents also the Member States’ general approach to retained control of the access rights. Not only the underlying legislative rules but also the conditions and procedural requirements as being employed by the competent administrative and judicial authorities remain in the regulatory power of the Member States.

Article 12 Programmes or schemes for the third-country nationals concerned 1. The third-country nationals concerned shall be granted access to existing programmes or schemes, provided by the Member States or by non-governmental organisations or associations which have specific agreements with the Member States, aimed at their recovery of a normal social life, including, where appropriate, courses designed to improve their professional skills, or preparation of their assisted return to their country of origin. Member States may provide specific programmes or schemes for the third-country nationals concerned. 2. Where a Member State decides to introduce and implement the programmes or schemes referred to in paragraph 1, it may make the issue of the residence permit or its renewal conditional upon the participation in the said programmes or schemes. Content I. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Access to existing programmes or schemes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. Recovery of normal social life. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2. Organisational requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 III. Specific programmes or schemes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 IV. Participation as condition for issue or renewal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

I. General remarks The first subparagraph of Article 12(1) contains rules on the participation of third- 1 country nationals concerned in programmes or schemes which have the objective to enhance their chances to recover a ‘normal social life’. This can include specific courses to improve professional skills or preparation for their assisted return into the country of origin. The second subparagraph of Article 12(1) provides for programmes or schemes especially designed for persons who have been victims of trafficking in human beings or illegal immigration. In addition, Article 12(2) empowers the Member States to take the participation in programmes or schemes as a condition with respect to issue and renewal of residence permits according to Article 8 of the Directive.136 136 For the drafting history of Article 12, see Kau, ‘Human Trafficking Directive 2004/81/EC’ in: Hailbronner (ed), EU Immigration and Asylum Law – Commentary, 1st edn (C.H. Beck/Hart/Nomos, 2010), Article 12 MN 2 et seqq.

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II. Access to existing programmes or schemes 2

The access to existing programmes and schemes pursuant to the first subparagraph of Article 12(1) depends on several conditions.137 Most notably, the access is stipulated as an individual right of the third-country national in question to enjoy the benefits of appropriate programmes and schemes.

1. Recovery of normal social life 3

4

5

6

7

The first substantial requirement is that the programmes or schemes have to enable third-country nationals concerned to pursue a ‘recovery of a normal social life’ irrespective of the inherently negative experiences made while being trafficked or smuggled. The requirements for this can to some extent be derived from the conditions laid down in Article 12(1). The ‘normal social life’ in the sense of Article 12(1) has to be understood as an average life with moderate and conventional social, economic and cultural activities and relationships. Since the victims of trafficking in human beings or illegal immigration are the persons to be covered by Article 12(1), their lives which are typically designated by exploitative labour practices and illegal residence status’ prohibiting a conventional private and work life, can be seen as the antagonism of a ‘normal social life’ envisaged by the provision. Therefore, the life to be ensured by the programmes and schemes is supposed to offer chances to retain a life which is ‘normal’ in terms of social relationships, legal residence status and conventionally accepted employment opportunities. Even if the term ‘recovery’ indicates that the person concerned returns to a situation previously enjoyed, it is not meant that this situation was indeed established before in every individual case. ‘Courses designed to improve professional skills’ are, for example, courses providing additional vocational training,138 general educational measures directed to foster employment opportunities or entrepreneural activities, specific academic studies and comparable activities. Since the first subparagraph of Article 12(1) contains the term to ‘improve’ with respect to the professional skills, the provision does not empower to start a professional education from scratch, but only to supplement and enhance already existing skills. In addition, the right to participate in the improvement courses depends on their appropriateness for the respective professional skills (‘if appropriate’). This means that the third-country nationals concerned are not entitled to participate in every course which is to some extent suitable for fostering professional perspectives, but that the appropriateness test must be previously met. Beside this, the preparation of an assisted return to the country of origin emphasises the provisional character of the residence permit issued under the Directive. Therefore, it can be concluded that the programmes or schemes mentioned in Article 12(1) are from the outset not intended to ensure the continuous stay of every third-country national concerned in the EU Member States. This is also why the aim of a ‘recovery of a normal social life’ has been harshly criticised. Since the very notion has been assessed as being quite illusionary that a person who has previously cooperated with the competent authorities of the host state against the traffickers and smugglers networks has a realistic perspective of regaining a ‘normal life’ without appropriate measures resembling the protection provided by 137 138

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specific witness protection programmes in order to prevent retribution or reprisal by traffickers or smugglers.139

2. Organisational requirements Initially, specific organisational requirements have to be fulfilled in order to 8 constitute an entitlement in favour of the third-country nationals concerned. The already limited right to acceed existing programmes and schemes, including courses to improve professional skills or the preparation of an assisted return, contained only those programmes and schemes provided by the Member States themselves. Since several Member States emphasised this aspect of the envisaged programmes and schemes they established the basic principle that the Member States decide on the application of Article 12 to programmes and schemes.140 In addition, programmes and schemes of non-governmental organisations and 9 associations can only be included into the application of the Directive if ‘specific agreements’ with the Member States have been concluded. Similarly, as in Article 5(2) of the Directive according to which only non-governmental organisations and associations being ‘especially appointed’ are competent to provide information.141

III. Specific programmes or schemes As a discretionary provision the second subparagraph of Article 12(1) empowers the 10 Member States to establish specific programmes and schemes being geared to the specific needs of victims of trafficking which in contrast to the first subparagraph of Article 12(1) were previously non-existing. According to the second subparagraph of Article 12(1) the Member States can, thereby, supplement and complete the range of programmes and schemes offered within the scope of Article 12. However, if ‘specific programmes or schemes’ have once been established on a voluntary basis, the thirdcountry nationals are entitled under the conditions of the second subparagraph of Article 12(1) to be granted access. Therefore, the Member States are not obliged to introduce ‘specific programmes or schemes’, but once introduced they are obliged to grant access to third-country nationals concerned.

IV. Participation as condition for issue or renewal If programmes and schemes aimed at the recovery of a normal social life exist or are 11 newly created according to Article 12 the issue or renewal of a residence permit can be made conditional upon the participation in the said programmes or schemes. Thereby, Article 12(2) comprises additional criteria supplementing those already stipulated in Article 8 of the Directive142 required for the issue and renewal of a residence permit. However, Article 12(2) is a discretionary provision leaving it to the Member States to introduce the participation in the programmes and schemes of Article 12(1) as condition for granting the residence permit. 139 See Raffaelli, GLJ 10 (2009), p. 205, 220; Gallagher, EJML 8 (2006), p. 163, 168; Boysen, Zeitschrift fu¨r Europarechtliche Studien 2008, p. 431, 446 et seqq.; Piotrowicz, IJRL 14 (2002), p. 263, 268 and 271. 140 See Kau, ‘Human Trafficking Directive 2004/81/EC’ in: Hailbronner (ed), EU Immigration and Asylum Law – Commentary, 1st edn (C.H. Beck/Hart/Nomos, 2010), Article 12, MN 3 et seqq. 141 For further information see Kau, ‘Human Trafficking Directive 2004/81/EC’ in: Hailbronner (ed), EU Immigration and Asylum Law – Commentary, 1st edn (C.H. Beck/Hart/Nomos, 2010), Article 12, MN 14 et seqq. 142 See Article 8 MN 7.

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Since Article 12(2) contains only the term ‘upon the participation’ the successful passing of any kind of examination or test at the end of a programme or scheme is not required. Hence, demanding more than participation would not be in conformity with the Directive.

CHAPTER IV NON-RENEWAL AND WITHDRAWAL Article 13 Non-renewal 1. The residence permit issued on the basis of this Directive shall not be renewed if the conditions of Article 8(2) cease to be satisfied or if a decision adopted by the competent authorities has terminated the relevant proceedings. 2. When the residence permit issued on the basis of this Directive expires ordinary aliens’ law shall apply. Content I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Non-Renewal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Conditions of Article 8 ceasing to be satisfied . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Termination of relevant proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Application of ordinary aliens’ law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 4 5

I. General remarks 1

Article 13(1) provides that the Member States are obliged not to renew the residence permit if two alternative requirements are fulfilled: Either the conditions set up in Article 8(2) are no longer met or the relevant criminal proceedings have been terminated. Whereas the second sentence of Article 8(3) enshrines an individual right to renew an already granted residence permit,143 Article 13(1) contains rules prohibiting a renewal of the residence permit if the relevant conditions cease to be satisfied. In addition, Article 13(2) stipulates that after not renewing the residence permit by virtue of a reason mentioned in Article 13(1), the ‘ordinary aliens’ law’ of the Member States applies. The overall purpose of the provision is therefore to provide rules on how to proceed if conditions originally required for granting residence permits cease to exist and to determine which rules apply after the residence permits expire.144

II. Non-Renewal 2

Article 13(1) provides for a binding obligation of the Member States to not renew the residence permits if specific conditions are fulfilled. In general, the Member States are bound to reject applications to renew residence permits which previously have been issued on the basis of the Directive if either the conditions set up in Article 8(2) 143

See Article 8 MN 12. For the drafting history of Article 13, see Kau, ‘Human Trafficking Directive 2004/81/EC’ in: Hailbronner (ed), EU Immigration and Asylum Law – Commentary, 1st edn (C.H. Beck/Hart/Nomos, 2010), Article 13 MN 2 et seqq. 144

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Art. 13

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Part C IV

cease to be satisfied or the relevant proceedings have been terminated by the competent authorities.

1. Conditions of Article 8 ceasing to be satisfied While Article 13(1) explicitly refers only to Article 8(2), this provision stipulates that 3 ‘for the issue of the residence permit … the fulfilment of the conditions referred to in paragraph 1 [of Article 8] shall be required’. Therefore, the reference to Article 8(2) encompasses automatically also a reference to Article 8(1) which contains in some detail the preconditions to be considered for granting a residence permit on the basis of the Directive. As already mentioned in the interpretation of Article 8, for granting a residence permit it is necessary to regard the opportunity presented by a prolonged stay for the proceedings (a), the credible intention to cooperate (b) and the severance of all relations with those who are suspected to be perpetrators of offences related to trafficking in human beings (c). As a result, an application for renewal of a residence permit has to be rejected if the prolonged stay of the third-country national concerned does for one of the stated reasons not promise a probable benefit for investigation and prosecution causes, especially the needs of the relevant proceedings.145

2. Termination of relevant proceedings The second case in which the Member States are obliged to reject an application for 4 renewal of a residence permit is given if a decision has been adopted by the competent authorities to terminate the relevant proceedings.146 The wording of the provision leaves the Member States room to determine in each individual case according to their national law the relevant authorities.147 Therefore, all decisions terminating the ‘relevant national proceedings’ automatically prevent the residence permits which were originally issued on the basis of the Directive from being renewed. A termination of ‘the proceedings’ in the sense of Article 13(1) can take place in various forms: For example, with respect to criminal proceedings as conviction, acquittal, dismissal, or discontinuing the lawsuit for some other reason, or, pertaining to the end of investigations conducted by police forces or prosecutors by withdrawing the charges. In sum, it has to be noted that every termination of proceedings which were initiated in relation to a residence permit previously granted under the Directive foreclose a renewal of the said residence permit. Before this legal background, Article 13(1) was received with strong criticism due to the compulsory termination of the residence permit after the proceedings have ended, regardless of the extent to which the persons in question have cooperated with the competent authorities, and regardless if they have considerably contributed to render convictions of traffickers and smugglers possible.148

III. Application of ordinary aliens’ law One of the most crucial and most criticised provisions of the Directive is laid down 5 in Article 13(2) plainly stating that after the expiry of the residence permit, which was originally granted on the basis of Directive, the ‘ordinary aliens’ law’ of the respective 145

COM(2002) 71, p. 15; see Article 8 MN 3 et seqq. Raffaelli, GLJ 10 (2009), p. 205, 207 et seq. 147 See Council doc. no. 12228/03 of 12 September 2003, p. 3, note 1; again in Council doc. no. 12958/ 03 of 10 October 2003, p. 3, note 1 and Council doc. no. 13875/03 of 29 October 2003, p. 3, note 1. 148 Boysen, Zeitschrift fu ¨ r Europarechtliche Studien 2008, p. 431, 446; Piotrowicz, IJRL 14 (2002), p. 263, 270. 146

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Part C IV Art. 13

Immigration

Member State shall apply. According to the Commission’s original Proposal the nonrenewal was not intended to ‘prejudge the issue of another type of residence permit if the victim applies for it’.149 Considering the original wording of Article 13(2), stating that ‘Member States shall take account of [the victims] … cooperation when considering their applications’,150 intimated that the previous residence permit was supposed to have some positive effect on the application for another permit under ‘ordinary aliens’ law’. This impression was supported by the explanatory memorandum in which the Commission pointed out that although ‘[t]he prior issue of a short-term residence permit does not create an entitlement to residence once the proceedings have finished,… the Member States must take the victim’s cooperation into account, either because it was decisive in bringing the proceedings to a successful conclusion or because the victim will run special risks in the event of expulsion’.151 In the view of the Commission this perspective would have worked as an ‘additional incentive’ aimed at encouraging the third-country nationals concerned to disclose information on the traffickers’ and smugglers’ networks.152 Even the original framework of the Directive was criticised for a lack of legal guarantees and incentives for entering into a cooperation.153 6 At any rate, the amendments of Article 13(2) and the eventual deletion of the second sentence of Article 13(2) have changed the applicable legal framework considerably. Without this reference and without the background of the explanatory memorandum, the Member States are not bound to take account of the victim’s contribution to the relevant national proceedings. The emerging regulatory gap could not be filled by the insertion in recital 15 and recital 18 which both demand only that the Member States ‘should consider’ the fact that a residence permit under the Directive had been previously granted.154 First, the recitals are generally not binding for the Member States, especially compared with the single articles of the Directive. The recitals can, however, influence the interpretation of the Directive if the wording of a provision is ambiguous or unclear, but in the case of Article 13(2) the Member States have decided not to include an explicit rule in the Directive and, therefore, deliberately abstained from regulating this issue. Hence, it would appear contradictory to the intentions of the Member States and the wording of Article 13 of the Directive to give recitals 15 and 18 the same effect as the deleted second sentence of Article 13(2) would have had. Additionally, recital 15 and recital 18 both comprise only the term ‘should consider’ which in comparison with the originally envisaged phrase of ‘shall take account of’ is significantly weaker. Using this term conveys the impression that the Member States are supposed to regard the previously granted residence permit under the Directive, but are for the most part free to which extent they award it substantial influence on granting a residence permit under the application of their ‘ordinary aliens’ law’. 7 As already pointed out, Article 13(2) and the missing obligation to grant a permanent residence permit on the basis of ‘ordinary aliens’ law’ after the original permit had expired were the cause of severe criticism. No other provision of the Directive emphasises more clearly that according to most Member States the thirdcountry nationals concerned are only relevant as long as they ensure an effective 149

COM(2002) 71, p. 15. COM(2002) 71, p. 23. 151 COM(2002) 71, p. 15. 152 COM(2002) 71, p. 15. 153 Piotrowicz, IJRL 14 (2002), p. 263, 272 (‘There can be little incentive for anyone to enter any of these programmes if they believe that they will have to leave as soon as their usefulness for the criminal justice process has elapsed.’). 154 Council doc. 14432/03 of 11 November 2003, p. 13, note 1; in this context also Peers, EU Justice and Home Affairs Law, 3rd edn (OUP, 2011), no. 5.6, p. 274 et seq. 150

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Art. 14

Human Trafficking Directive 2004/81/EC

Part C IV

investigation and prosecution of related crimes by giving testimony and providing further evidence.155 Additionally, the binding legal guarantees provided by the Directive in exchange for the cooperation were assessed as being too weak.156 Whereas the victims of trafficking were required to contribute substantially to the ‘relevant national proceedings’ and, therefore, run the considerable risks of retribution and reprisal by the traffickers and smugglers,157 the Member States provide only limited guarantees by granting a temporary residence permit under the Directive and, subsequently, offer only a remote and rather vague prospect of being granted any form of permanent residence status. Especially the deletion of the second sentence of Article 13(2) – as weak as it might have been – exemplifies that the Directive’s legal framework offers too few incentives for the generally hesitant victims of trafficking to start a cooperation.158

Article 14 Withdrawal The residence permit may be withdrawn at any time if the conditions for the issue are no longer satisfied. In particular, the residence permit may be withdrawn in the following cases: (a) if the holder has actively, voluntarily and in his/her own initiative renewed contacts with those suspected of committing the offences referred to in Article 2(b) and (c); or (b) if the competent authority believes that the victim’s cooperation is fraudulent or that his/her complaint is fraudulent or wrongful; or (c) for reasons relating to public policy and to the protection of national security; or (d) when the victim ceases to cooperate; or (e) when the competent authorities decide to discontinue the proceedings. Content I. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Cases of withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. Renewed contacts (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2. Fraudulent cooperation (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 3. Reasons of public policy and protection of national security (c) . . . . . . . 8 4. Ceasing to cooperate (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 5. Discontinue of proceedings (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 III. Relevant point in time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

155 E. g. Article 3(2), Article 5(2), Article 6(4) and Article 8(1)(a) to (c) of this Directive, see for further information the interpretation above of the aforementioned provisions. 156 Chuang, Indiana Journal of Global Legal Studies, 13 (2006), p. 137, 148 et seq.; Piotrowicz, IJRL 14 (2002), p. 263, 268; Boeles/den Heijer et al., European Migration Law, p. 370; Boysen, Zeitschrift fu¨r Europarechtliche Studien 2008, p. 431, 448; Gallagher, EJML 8 (2006), p. 163, 169. 157 Chuang, Indiana Journal of Global Legal Studies 13 (2006), p. 137, 151 et seq.; Boysen, Zeitschrift fu¨r Europarechtliche Studien 2008, p. 431, 448; Gallagher, EJML 8 (2006), p. 163, 169; Piotrowicz, IJRL 14 (2002), p. 263, 272. 158 Piotrowicz, IJRL 14 (2002), p. 263, 273 (‘It may be that, in fact, the various discretions built into it will allow for sympathetic and flexible treatment to all victims who give evidence, but there is too little in the proposal to indicate how likely this is.’).

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Part C IV Art. 14

Immigration

I. General remarks 1

Article 14 comprises several cases allowing the Member States to withdraw the residence permit issued under this Directive at any time if specific conditions are fulfilled and irrespective of its general validity of six months. As already stated in the first sentence of Article 8(3), the residence permit is issued only ‘without prejudice to the provisions on withdrawal’ referred to in Article 14. Some of the cases giving the opportunity to withdraw the residence permit are derived from Article 6(4).159 The main purpose of Article 14 is to ensure that no third-country national concerned can benefit from the (temporary) residence permit granted under the Directive if the conditions for its issue are no longer met.160

II. Cases of withdrawal At the outset, it has to be noted that Article 14 is a may clause leaving it entirely to the discretion of the Member States to withdraw a residence permit under the conditions laid down in the provision. Therefore, the Member States can also decide without restrictions to which extent they transpose Article 14 and its five enumerated cases of withdrawal. In this context, the term ‘in particular’ before the enumerated cases indicates that the cases mentioned in Article 14 are non-exhaustive containing only examples empowering to enforce a withdrawal.161 3 With respect to the criticism the provision has generated,162 it has to be considered that Article 14 belongs for the most part to the generally over-inclusive rules of the Directive by which the Member States are eager to prevent third-country nationals from enjoying the benefits of the framework without being eligible due to fraudulent motifs or false evidence. Hence, Article 14 is consistent with the rules stipulated in Article 6(4) and Article 8(1)(a) to (c) which also contain precautions to prevent fraudulent use of the opportunities offered under the Directive. 2

1. Renewed contacts (a) 4

As far as Article 14(a) allows the Member States to withdraw the residence permit if the holder has ‘actively, voluntarily and in his/her own initiative’ renewed contacts to persons suspected of being perpetrators pertaining to offences related to trafficking in human beings,163 the same yardstick applies as to Article 6(4) where this formula was mentioned for the first time. At its heart, the formula requires that the third-country national concerned takes own actions toward the trafficker and is not merely approached him-/herself as he/she remains in a passive position.164 159

See Article 6 MN 19 et seqq. For the drafting history of Article 14, see Kau, ‘Human Trafficking Directive 2004/81/EC’ in: Hailbronner (ed), EU Immigration and Asylum Law – Commentary, 1st edn (C.H. Beck/Hart/Nomos, 2010), Article 14 MN 2 et seqq. 161 Peers, EU Justice and Home Affairs Law, 3rd edn (OUP, 2011), no. 5.6, p. 275; see Council doc. no. 12228/03 of 12 September 2003, p. 14, note 2. 162 Gallagher, EJML 8 (2006), p. 163, 169; Boysen, Zeitschrift fu ¨ r Europarechtliche Studien 2008, p. 431, 448; Piotrowicz, IJRL 14 (2002), p. 263, 272; Chuang, Indiana Journal of Global Legal Studies 13 (2006), p. 137, 151 et seq. 163 See for further information about ‘perpetrators suspected of committing the offences’ above Article 2 MN 3 et seqq. and above Article 6 MN 25. 164 See Article 6 MN 21 et seqq. 160

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Art. 14

Human Trafficking Directive 2004/81/EC

Part C IV

For proving that the third-country national in question has taken the initiative to 5 approach one of the traffickers or smugglers the similar evidentiary requirements apply as under Article 6(4). Therefore, mere allegations or unfounded assumptions are deemed insufficient to prove a renewed contact in order to withdraw an already granted residence permit on the basis of the Directive. Therefore, it is required to provide substantial evidentiary material.165

2. Fraudulent cooperation (b) A cooperation can be assessed as being ‘fraudulent’ in the sense of Article 14(b) if the 6 person in question operates with false or deceiving contentions and allegations in order to mislead the competent authority or even harm the position of the investigating and prosecuting authorities in the relevant national proceedings. With respect to the use of the terms ‘fraudulent’ and ‘wrongful’ it can be derived that on the side of the third-country national in question intention is needed and that careless or negligent use of false or deceiving statements does not fulfil the requirements laid down in Article 14(b). Even though prima facie it might appear sufficient if the authority ‘believes’ that the 7 cooperation is fraudulent, the evidentiary requirements pertaining to Article 14(b) have to be comparable to the proving of a renewed contact pursuant to Article 14(a). Therefore, substantial evidentiary material has to be presented in order to demonstrate that the cooperation was in fact fraudulent. Due to the traumatic experiences the thirdcountry nationals have undergone the examination has to be administered with appropriate restraint and procedural fairness taking into account the person’s particularly vulnerable situation.

3. Reasons of public policy and protection of national security (c) By referring to the ‘reasons of public policy’ and the ‘protection of national 8 security’, Article 14(c) comprises the same reservation as Article 6(4) and Article 8(2) of the Directive. The already stated principles are, therefore, also applicable with respect to Article 14(c).166

4. Ceasing to cooperate (d) Article 14(d) completes the cases of withdrawal in accordance with an assessment 9 already included in Article 8(1)(b) (‘clear intention to cooperate’). To some extent the moment a third-country national concerned ceases to cooperate constitutes the clearest case to justify a withdrawal of the residence permit. The particular conduct can be proved by comparing the current degree of cooperation with the cooperation previously depicted. Since the wording ‘ceases to cooperate’ refers to a situation in which no cooperation exists any longer, a diminished but still perceptible cooperation which is not only marginal in nature does not fulfil the requirements of Article 14(d).

5. Discontinue of proceedings (e) Corresponding to the termination of the ‘relevant proceedings’ in Article 13(1) the 10 general term of the ‘discontinuance of the proceedings’ encompasses all forms of a procedural termination stemming from any competent authority. The decision to discontinue a proceeding can, for example, derive from the judiciary, the law enforce165 166

See Article 6 MN 24. See above Article 6 MN 26 and above Article 8 MN 9 et seq.

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Part C IV Art. 15–19

Immigration

ment authorities (investigation/prosecution) or any other executive or administrative authority. In any case, the Member States are empowered to withdraw the residence permits granted under the Directive irrespective of the extent the third-country nationals have contributed to the investigation or prosecution.167

III. Relevant point in time 11

As in Article 6 with respect to the termination of the reflection period, the withdrawal of the residence permit issued under the Directive can also be conducted ‘at any time’. This leads to a situation in which the threatening perspective of losing the benefits offered under the Directive, especially the (temporary) residence permit, puts considerable pressure on the third-country national concerned. Once a person has started to cooperate with the competent authorities, the permanent revocability for a number of diverse reasons is obviously designed to discipline the person in question to continue the cooperation. The disposal of several grounds to withdraw the residence permit covering a wide range of situations and conditions seems to be framed to exert pressure which is even enhanced since the general validity of the residence permit of six months does not foreclose a withdrawal.

CHAPTER V FINAL PROVISIONS Article 15 Safeguard clause This Directive shall apply without prejudice to specific national rules concerning the protection of victims and witnesses.

Article 16 Report 1. No later than 6 August 2008, the Commission shall report to the European Parliament and the Council on the application of this Directive in the Member States and propose any amendments that are necessary. The Member States shall send the Commission any information relevant to the preparation of this report. 2. After presenting the report referred to in paragraph 1, the Commission shall report to the European Parliament and the Council at least every three years on the application of this Directive in the Member States.

Article 17 Transposal The Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 6 August 2006. They shall immediately inform the Commission accordingly. 167 Raffaelli, GLJ 19 (2009), p. 205, 209. See for further information the interpretation of Article 13 of this Directive, MN 4.

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Art. 15–19

Human Trafficking Directive 2004/81/EC

Part C IV

When the Member States adopt these 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.

Article 18 Entry into force This Directive shall enter into force on the day of its publication in the Official Journal of the European Union.

Article 19 Addressees This Directive is addressed to the Member States in accordance with the Treaty establishing the European Community. Content I. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Specific safeguard clause (Article 15) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. General final provisions (Articles 16, 17, 18 and 19). . . . . . . . . . . . . . . . . . . . . . . .

1 2 3

I. General remarks Article 15 to 19 contain the final provisions of the Directive. While Article 16 to 19 1 include the general final provisions, such as the entry into force and the transition period, Article 15 contains a specific safeguard clause.168

II. Specific safeguard clause (Article 15) In addition to the general ‘more favourable provision’ clause of Article 4, the 2 Directive provides a specific safeguard clause which refers to ‘national rules concerning the protection of victims and witnesses’. Coupled with recital 5 stating in particular that the ‘Directive is without prejudice to other provisions on the protection of victims, witnesses or persons who are particularly vulnerable’, Article 15 addresses the issue of witness protection but emphasises simultaneously that the Commission and the Member States intended to exclude it from the Directive’s legal framework.169 To some extent, Article 15 is also the palpable expression of a widely criticised shortcoming of the Directive since it does not provide for generally accepted rules on the protection of victims of trafficking which have decided to cooperate with the competent authorities.170 168 For the drafting history of Article 15 to 19, see Kau, ‘Human Trafficking Directive 2004/81/EC’ in: Hailbronner (ed), EU Immigration and Asylum Law – Commentary, 1st edn (C.H. Beck/Hart/Nomos, 2010), Article 19 MN 2. 169 COM(2002) 71, p. 3. 170 Opinion no. 4/2009 of the Group of Experts on Trafficking in Human Beings, 16 June 2009, p. 2; Raffaelli, GLJ 10 (2009), p. 205, 220; Piotrowicz, IJRL 14 (2002), p. 263, 268 and 271; Gallagher, EJML 8 (2006), p. 163, 168; Boysen, Zeitschrift fu¨r Europarechtliche Studien 2008, p. 431, 446 et seqq.

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Part C IV Art. 19

Immigration

III. General final provisions (Articles 16, 17, 18 and 19) In connection with to Article 16, a report of the Commission on the application of the Directive in the Member States was submitted on 15 October, 2010.171 In 2014 a Communication from the Commission on the Directive was published updating the 2010 survey.172 4 According to Article 17, the Member States had to implement the Directive by 6 August 2006. The territorial scope of application of the Directive includes 25 out of the 28 Member States, since the UK, Ireland and Denmark are not taking part in the Directive in accordance with protocols 4 and 5 annexed to TEU and TEC (Amsterdam/ Nice versions).173 Thus, these countries are not bound by the Directive or subject to its application. However, it has to be regarded that the Council of Europe Convention on Action against Trafficking in Human Beings174 contains international law-based obligations with respect to trafficking in human beings and illegal immigration which also bind the United Kingdom, Ireland and Denmark.175 5 The Directive entered into force on 6 August 2004, the day of its publication in the Official Journal of the European Union.176 3

171

COM(2010) 493 final. COM(2014) 635 final. 173 See protocols 4 and 5 annexed to the Treaty on European Union and the Treaty establishing the European Community (Amsterdam version) and recitals 21 and 22 of this Directive; see Boeles/den Heijer et al., European Migration Law, p. 366. 174 CETS No. 197; CM(2005)32 Addendum 1 final 3 May 2005, see the text under http://conventions.coe.int/Treaty/EN/Treaties/Html/197.htm (last accessed: 8 April 2015); entered into force on 1 February 2008. In the meantime 43 States have ratified the Convention, among them 27 Member States of the EU. 175 See Article 1 MN 4 et seqq. 176 OJ 2004 L 261/19. 172

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V. 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 Official Journal L 375, 23/12/2004, p. 12–18 Selected Bibliography: Abarca Junco/Go´mez-Urrutia, ‘El re´gimen jurı´dico de los estudiantes e investiga~a’, Revista Electro´nica de Estudios Internationales, 17 (2009), p. 1; Auer, dores extranjeros en Espan ‘Voraussetzungen eines Aufenthaltsrechts aus Art. 6 ARB 1.80 fu¨r tu¨rkische Studierende mit Nebenbescha¨ftigung im Rahmen des § 16 III AufenthG’, Zeitschrift fu¨r Ausla¨nderrecht 2008, 223; Bertozzi, Integration: An Ever-closer Challenge, CEPS Working Document No. 258 (2007); Hailbronner, Ausla¨nderrecht Kommentar (C.H. Beck); Hoogenboom, ‘Turkish Nationals and the Right to Study in the European Union: A Progressive Interpretation’, EJML 15 (2013), p. 387; International Organisation for Migration/European Parliament, Comparative Study of the Laws in the 27 EU Member States for Legal Migration (2008); Kocharov, ‘What lntra-Community mobility for third-country workers?’ EL Rev 33 (2008), p. 913; Muzak, ‘Ein Fremdenrecht fu¨r Wissenschaftler und Auslandsstudierende?’, Zeitschrift fu¨r Hochschulrecht (2007), p. 67; Peers, ‘EC immigration law and EC association agreements: fragmentation or integration?’ EL Rev. 32 (2009), p. 628; Peers, ‘Turkish visitors and Turkish students: New rights from the European Court of Justice’, Journal of Immigration Asylum and Nationality Law 23 (2009), 197; Peers and others (eds), EU Immigration and Asylum Law; Volume 2: EU Immigration Law, 2nd ed (Martinus Nijhoff, 2012); Welte, ‘Assoziationsrecht nach Art 6 I ARB 1/80 bei der Bescha¨ftigung von tu¨rkischen Studenten’ Zeitschrift fu¨r Ausla¨nderrecht 2010, 53; Wiesbrock, ‘Free Movement of Third-Country Nationals in the European Union: The Illusion of lnclusion’ EL Rev. 35 (2010), p. 455; Wiesbrock, Legal Migration to the European Union (Immigration and Asylum Law and Policy in Europe) (Martinus Nijhoff, 2010).

THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular points (3)(a) and (4) of the first subparagraph of Article 63 thereof, Having regard to the proposal from the Commission, Having regard to the Opinion of the European Parliament(1), Having regard to the Opinion of the European Economic and Social Committee(2), Having regard to the Opinion of the Committee of the Regions(3), Whereas: (1) For the gradual establishment of an area of freedom, security and justice, the Treaty provides for measures to be adopted in the fields of asylum, immigration and the protection of the rights of third-country nationals. (2) The Treaty provides that the Council is to adopt measures on immigration policy relating to conditions of entry and residence, and standards on procedures for the issue by Member States of long-term visas and residence permits. (3) At its special meeting at Tampere on 15 and 16 October 1999, the European Council acknowledged the need for approximation of national legislation on the conditions for admission and residence of third-country nationals and asked the Council to rapidly adopt decisions on the basis of proposals by the Commission. (4) This Directive respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union. (1)

OJ C 68 E, 18.3.2004, p. 107. OJ C 133, 6.6.2003, p. 29. (3) OJ C 244, 10.10.2003, p. 5. (2)

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Part C V

Immigration

(5) The Member States should give effect to the provisions of this Directive without discrimination on the basis of sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinions, membership of a national minority, property, birth, disability, age or sexual orientation. (6) One of the objectives of Community action in the field of education is to promote Europe as a whole as a world centre of excellence for studies and vocational training. Promoting the mobility of third-country nationals to the Community for the purpose of studies is a key factor in that strategy. The approximation of the Member States’ national legislation on conditions of entry and residence is part of this. (7) Migration for the purposes set out in this Directive, which is by definition temporary and does not depend on the labour-market situation in the host country, constitutes a form of mutual enrichment for the migrants concerned, their country of origin and the host Member State and helps to promote better familiarity among cultures. (8) The term admission covers the entry and residence of third-country nationals for the purposes set out in this Directive. (9) The new Community rules are based on definitions of student, trainee, educational establishment and volunteer already in use in Community law, in particular in the various Community programmes to promote the mobility of the relevant persons (Socrates, European Voluntary Service etc.). (10) The duration and other conditions of preparatory courses for students covered by the present Directive should be determined by Member States in accordance with their national legislation. (11) Third-country nationals who fall into the categories of unremunerated trainees and volunteers and who are considered, by virtue of their activities or the kind of compensation or remuneration received, as workers under national legislation are not covered by this Directive. The admission of third-country nationals who intend to carry out specialisation studies in the field of medicine should be determined by the Member States. (12) Evidence of acceptance of a student by an establishment of higher education could include, among other possibilities, a letter or certificate confirming his/her enrolment. (13) Fellowships may be taken into account in assessing the availability of sufficient resources. (14) Admission for the purposes set out in this Directive may be refused on duly justified grounds. In particular, admission could be refused if a Member State considers, based on an assessment of the facts, that the third-country national concerned is a potential threat to public policy or public security. The notion of public policy may cover a conviction for committing a serious crime. In this context it has to be noted that the notions of public policy and public security also cover cases in which a third-country national belongs or has belonged to an association which supports terrorism, supports or has supported such an association, or has or has had extremist aspirations. (15) In case of doubts concerning the grounds of the application of admission, Member States should be able to require all the evidence necessary to assess its coherence, in particular on the basis of the applicant’s proposed studies, in order to fight against abuse and misuse of the procedure set out in this Directive. (16) The mobility of students who are third-country nationals studying in several Member States must be facilitated, as must the admission of third-country nationals

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participating in Community programmes to promote mobility within and towards the Community for the purposes set out in this Directive. (17) In order to allow initial entry into their territory, Member States should be able to issue in a timely manner a residence permit or, if they issue residence permits exclusively on their territory, a visa. (18) In order to allow students who are third-country nationals to cover part of the cost of their studies, they should be given access to the labour market under the conditions set out in this Directive. The principle of access for students to the labour market under the conditions set out in this Directive should be a general rule; however, in exceptional circumstances Member States should be able to take into account the situation of their national labour markets. (19) The notion of prior authorisation includes the granting of work permits to students who wish to exercise an economic activity. (20) This Directive does not affect national legislation in the area of part-time work. (21) Provision should be made for fast-track admission procedures for study purposes or for pupil exchange schemes operated by recognised organisations in the Member States. (22) Each Member State should ensure that the fullest possible set of regularly updated information is made available to the general public, notably on the Internet, as regards the establishments defined in this Directive, courses of study to which third-country nationals may be admitted and the conditions and procedures for entry and residence in its territory for those purposes. (23) This Directive should not in any circumstances affect the application of Council Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uniform format for residence permits for third-country nationals(4). (24) Since the objective of this Directive, namely to determine the conditions of admission of third-country nationals for the purposes of study, pupil exchange, unremunerated training or voluntary service, cannot be sufficiently achieved by the Member States and can, by reason of its scale or effects, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary to achieve that objective. (25) In accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, and without prejudice to Article 4 of the said Protocol, these Member States are not taking part in the adoption of this Directive and are not bound by it or subject to its application. (26) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application, HAS ADOPTED THIS DIRECTIVE:

(4)

OJ L 157, 15.6.2002, p. 1.

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CHAPTER I GENERAL PROVISIONS Article 1 Subject matter The purpose of this Directive is to determine: (a) the conditions for admission of third-country nationals to the territory of the Member States for a period exceeding three months for the purposes of studies, pupil exchange, unremunerated training or voluntary service; (b) the rules concerning the procedures for admitting third-country nationals to the territory of the Member States for those purposes. Content I. II. III. IV. V. VI.

General remarks and structure of the Directive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Legal Basis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . New developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Drafting History of Article 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 5 6 8 9

I. General remarks and structure of the Directive 1

The Students Directive 2004/114/EC determines the conditions of admission of thirdcountry nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service. The Directive is structured into six chapters. General provisions, comprising the purpose of the Directive, definitions and scope are set out in Chapter I (Article 1–4). The Directive only covers stays for more than three months (Article 1). Specific groups of persons, e. g. asylum seekers, and workers under national law, are excluded from the scope (Article 3(2)). The Directive distinguishes four categories of persons according to the purpose of their required admission: students, pupils, unremunerated trainees and volunteers. The Member States are obliged to apply the Directive to students, whereas the application to the other three categories is optional (Article 3(1)). Chapter II (Article 5–11) contains conditions for admission. Article 5 establishes the general principle that a person may only be admitted to a Member State’s territory if he/ she meets the general and specific conditions set out for each category of persons. Article 6 determines the general requirements which all applicants have to fulfil whereas the specific conditions for each of the four categories are set out in Article 7, 9–11. Article 8 provides for conditions under which students’ right of mobility within the territory of the EU may be exercised. Chapter III governs the period of validity, the specific conditions for the renewal and withdrawal of residence permits (Article 12–15) and sets out general rules for the termination of a residence permit (Article 16). Chapter IV (Article 17) entitles students to work. The organisation of national administrative procedures is set out in Chapter V (Article 18–20). Chapter VI (Article 21–26) comprises final provisions.

II. Purpose 2

The Directive intends to promote the EU as a world centre of education: The admission of third-country nationals into the educational establishments of the Member 570

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States shall encourage these establishments to develop higher-value programmes, animate the dynamics of European education systems and thus contribute indirectly to develop a quality education, set as objective by Article 165 TFEU.1 More directly, the Directive is to meet the growing demand for international mobility. The migration of students is seen as ‘mutual enrichment’ for the migrants, the host states as well as the countries of origin.2 Additionally, the Directive is meant to encourage the intercultural exchange, which, as a result, shall entail the dissemination of the EU’s values of human rights, democracy and the rule of law.3 Provisions concerning school pupils have been included to stimulate the discovery of the European culture by school exchanges, especially as school pupils might subsequently be attracted to return to the host Member State for the purpose of studies in higher education.4 Although the category of volunteers does not exactly concern the area of education, it was included into the Directive’s scope because volunteers sometimes do not fall into any established category of migrants and are hence often not regulated by national legislation at all which makes it difficult for them to obtain admission.5 Migration under the Directive is per definition temporary and the return of third- 3 country nationals to their country of origin shall be ensured and so avoid the amplification of South-North brain drain, but rather serve the labour markets of the countries of origin.6 The integration of the third-country nationals concerned is not an objective of this Directive. Unlike other directives, this Directive does therefore not contain any specific integrative elements. Even though this concept of temporariness and the concern for brain drain effects 4 informed the genesis of the Directive,7 many national policies concerning students have not followed suit.8 Even the Directive’s proposal already envisaged the change from student to worker status, though in a different Directive.9 Although that Directive10 did not pass11, subsequent European policies such as the Blue Card Directive 2009/50/EC are pointing the same direction. The recast proposal finally pushed the issues to the side talking euphemistically of brain circulation12 and remittances13 instead of brain drain. The focus was shifted to Europe’s need for third-country nationals to fill job openings.14 Consequently, the proposal provides for example for subsequent access to the job market for graduated students and researchers.15 For the categories of persons within the scope of this Directive other than students (au-pairs, pupils, volunteers and trainees), the recast Directive maintains a more restrictive position. For these, the concept of temporariness and the concern for brain drain may continue to play a greater role.16 1

Commission Proposal, COM(2002) 548, p. 3. Recital 7; Wiesbrock, Legal Migration, p. 276. Commission Proposal, COM(2002) 548, p. 3. 4 Ibid, p. 4. 5 Ibid, p. 4–5. 6 Ibid, p. 3; the discussion on the issue of brain drain is old and ongoing, see for more details Wiesbrock, Legal Migration, p. 490–492 with further references. 7 Ibid, p. 3. 8 Commission Impact Assessment, SWD(2013) 77, p. 20, 98–102. 9 Commission Proposal, COM(2002) 548, p. 3. 10 Commission Proposal, COM(2001) 386. 11 Commission Communication, COM(2005) 462, p. 12. 12 Commission Recast Proposal COM(2013) 151, p. 3. 13 Ibid, p. 4. 14 Ibid, p. 3; concerning the conceptual underpinning of EU immigration policy in general see above Thym, Part C I, MN 4. 15 Commission Recast Proposal COM(2013) 151, p. 51. 16 Commission Impact Assessment, SWD(2013) 77, p. 37. 2 3

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III. Legal Basis 5

The Directive is based on the first paragraph of Article 63 no. 3(a) and no. 4 TEC (now Article 79(2)(a) and (b) TFEU). The Directive does not cover the access to Member State’s systems of education and vocational training; it only covers the conditions of entry, residence and status and only if the admission to the establishment of education has already been granted.17 Therefore, Article 149 and 150 TEC (now Article 165 and 166 TFEU) cannot be the legal basis of the Directive and Article 79(2)(a) and (b) TFEU is lex specialis for the migration of third-country nationals.18

IV. Drafting history In 1997, the Commission elaborated a proposal for a Council Act establishing a Convention on rules for the admission of third-country nationals to the Member States which inter alia covered the status of students but was never adopted.19 After the admission of third country students was discussed numerous times at the highest European political levels,20 the Commission put forward its proposal for this Directive in 2002.21 On 13 December 2004, the Directive was formally adopted and entered into force on 12 January 2005. 7 Ireland and the UK have opted out of the Directive, and Denmark was not eligible to participate in it.22 The remaining Member States were obliged by Article 22(1) to implement the Directive by 12 January 2007. 6

V. New developments 8

A report of the Directive’s application was announced by Article 21 of the Directive for January 2010 and was delivered by the Commission in September 2011.23 A number of EU policy documents concerning mobility in higher education to and within Europe was developed which all stress the importance of furthering the mobility of students and other young people to and within the EU.24 Finally, a recast proposal, which suggests the consolidation of the Students Directive 2004/114/EC and the Researchers Directive 17

See Article 7(1)(a), Article 9(1)(b), Article 10(a). Peers/Rogers, EU Immigration and Asylum Law (Martinus Nijhoff, 2006), p. 734 et seq. 19 Commission Proposal, COM(1997) 387. 20 Lisbon European Council of 23/24 March 2000, Presidency conclusions, at 24 et seqq., available at: http://www.europarl.europa.eu/summits/lis1_en.htm [last accessed 15 June 2015]; Stockholm European Council of 23/24 March 2001, Presidency conclusions (PE 303.105), at 10, available at: http://www.europarl.europa.eu/summits/pdf/sto1_en.pdf [last accessed 15 June 2015]; Commission Communication on its strategy to strengthen the cooperation with third countries in the field of higher education, COM (2001) 385. 21 Commission Proposal, COM(2002) 548. 22 Recitals 25 and 26. 23 Commission Report, COM(2011) 587. 24 Among others: Council Resolution (16096/1/07 REV 1) on modernising universities for Europe’s competitiveness in a global knowledge economy; Commission Green Paper, COM(2009) 329 Promoting the mobility of young people; Council conclusions (OJ 2010 C 135/12) on the internationalisation of higher education; Council conclusions (OJ 2010 C 326/9) on the Youth on the Move initiative; Commission Communication, COM(2011) 500, A Budget for Europe 2020; Commission Communication, COM(2011)567 Supporting growth and jobs – an agenda for the modernisation of Europe’s higher education systems; Council Conclusions (OJ 2011 C 372/09) of on the modernisation of higher education. 18

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2005/71/EC, was introduced in March 2013.25 The implementation report26 and the recast proposal27 identified problems of application under the existing Directive which put into question whether third-country nationals consistently receive fair treatment. In particular some of the existing rules are considered as being unclear and leaving too much scope of interpretative discretion to the Member States. Also, the number of third-country students in the EU being at 650.000 in 201228 is considered as being unsatisfactory in order to achieve the goal to attract more third-country students and researchers to the EU. The recast proposal suggested many changes concering these issues29 but many advised solutions have been made much more complicated or rejected or watered down significantly by the Council.30 Political agreement on the new Directive31 was reached on 17 November 2015.32

VI. Drafting History of Article 1 The original wording on the description of the Directive’s scope of application ‘for the 9 purposes of studies, vocational training or voluntary service’ used in the title and Article 133 was considered as confusing in the Council. According to the Commission, the Directive was meant to generally cover the admission for the purpose of vocational training.34 Professional training, a common form of vocational training, however, should be covered only in its unremunerated form, whereas remunerated training was planned to be generally covered by a second – later withdrawn – Directive. It was also not clear whether the term ‘vocational training’ already included the term ‘studies’.35 Therefore, the Council decided to entirely drop the term ‘vocational training’ and list the purposes ‘studies, pupil exchange, unremunerated trainee or voluntary service’ instead.36

Article 2 Definitions For the purposes of this Directive: (a) ‘third-country national’ means any person who is not a citizen of the European Union within the meaning of Article 17(1) of the Treaty; 25 Commission Recast Proposal, COM(2013) 151 with Commission Impact Assessment, SWD(2013) 77 and SWD(2013) 78. 26 Commission Report, COM(2011) 587. 27 Commission Impact Assessment, SWD(2013) 77, p. 10. 28 Eurostat, Students from abroad by level of education and origin (educ_momo_orig) (there is no data for the Czech Republic, Greece, France, Italy and Finland) available at: http://ec.europa.eu/eurostat [last accessed 15 June 2015]. 29 Commission Recast Proposal, COM(2013) 151; Commission Impact Assessment, SWD(2013) 77, p. 27–29. 30 See for an analysis of the Proposal in comparison with the Council position: Peers, More research is needed: the EU’s attempt to attract more non-EU researchers and students (EU Law Analysis, 23 January 2015) available at: http://eulawanalysis.blogspot.de/2015/01/more-research-is-needed-eus-attempt-to.html [last accessed 15 June 2015]; see for a first comparison of the old and the new Directive: Peers, The new Directive on imigration of students and researchers: a small step or a big leap forward? (EU Law Analysis, 23 November 2015) available at: http://eulawanalysis.blogspot.de/2015/11/the-new-directive-on-immigration-of.html [last accessed 29 November 2015]. 31 Council doc. 13974/15. 32 European Parliament, Press Release Reference No: 20151117IPR03054. 33 Commission Proposal, COM(2002) 548, p. 22–23. 34 Ibid p. 8. 35 Council doc. 5528/04, p. 2. 36 Ibid, p. 2.

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(b) ‘student’ means a third-country national accepted by an establishment of higher education and admitted to the territory of a Member State to pursue as his/her main activity a full-time course of study leading to a higher education qualification recognised by the Member State, including diplomas, certificates or doctoral degrees in an establishment of higher education, which may cover a preparatory course prior to such education according to its national legislation; (c) ‘school pupil’ means a third-country national admitted to the territory of a Member State to follow a recognised programme of secondary education in the context of an exchange scheme operated by an organisation recognised for that purpose by the Member State in accordance with its national legislation or administrative practice; (d) ‘unremunerated trainee’ means a third-country national who has been admitted to the territory of a Member State for a training period without remuneration in accordance with its national legislation; (e) ‘establishment’ means a public or private establishment recognised by the host Member State and/or whose courses of study are recognised in accordance with its national legislation or administrative practice for the purposes set out in this Directive; (f) ‘voluntary service scheme’ means a programme of activities of practical solidarity, based on a State or a Community scheme, pursuing objectives of general interest; (g) ‘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 Article 1(2)(a) of Regulation (EC) No 1030/2002. Content I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Third-country national (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Student (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Accepted by an establishment of higher education. . . . . . . . . . . . . . . . . . . b) Course of study leading to a higher education qualification . . . . . . . . c) Full-time course as main activity, worker. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) Preparatory courses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. School-pupil (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Unremunerated trainee (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Establishment (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Voluntary service scheme (f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. Residence permit (g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 2 3 4 6 9 11 12 13 17 18 19

I. General remarks 1

Article 2 contains definitions of the most important terms of the Directive. It aims to ensure that these terms are interpreted identically by the national legislations and thus helps to apply the Directive consistently in the European legislator’s sense. Pursuant to recital 9, its provisions are based on definitions already used in Community programmes.

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II. Definitions 1. Third-country national (a) The term ‘third-country national’ refers to people who do not possess the nationality 2 of a Member State of the EU including stateless persons (see Article 20 TFEU).37

2. Student (b) The definition of the term ‘student’ is linked to multiple conditions: The person has 3 to be accepted by an establishment of higher education. He/she has to follow a full-time course of study leading to a higher education qualification recognised by the host Member State. Lastly, this pursuit has to be the person’s main activity. a) Accepted by an establishment of higher education. The term ‘establishment’ is 4 defined in Article 2(e) (see below MN 17) whereas the term ‘higher education’ is not defined in the Directive and needs to be developed from definitions already used in Community programmes (see recital 9). In the past, such Community programmes have defined ‘higher education establishments’ but presupposed the meaning of ‘higher education’.38 The Commission Proposal for this Directive39 and also discussions in the Council (see Article 1 MN 9) differentiated between studies and vocational training. Finally, the recast Directive will refer to ‘all tertiary institutions’ and specifically also include vocational education and training.40 From this, it can be concluded that in this Directive, higher education does not include vocational training but only academic education. The condition of ‘being accepted’ was added by the Council to clarify that students 5 requiring admission to the territory of a Member State in order to apply to an establishment of higher education are not within the scope of application of the Directive41 although more favourable clauses are of course possible.42 From the expression ‘accepted’43 in comparison to the term ‘admitted’, it follows that the person does not have to be formally admitted to the establishment. This interpretation is supported by recital 12 mentioning the letter or certificate of enrolment as just one form of evidence of acceptance. The German version of the Article indicates as well a written promise44 as a possible option to prove acceptance. The Commission proposal states that a final enrolment is not necessary as enrolment documents are often handed out when the student actually arrives.45 However, the enrolment of the applicant subject to a decision on the equivalence of his foreign qualification or on the passing of an entrance test is not sufficient. A clause to that effect was deleted due to some Member States’ concerns regarding the potential abuse of such a right.46 37

Commission Proposal, COM(2002) 548, p. 8. E.g. Article 2(1) Decision No 2317/2003/EC (OJ 2003 L 345/1) Erasmus Mundus (2004–2008) and Decision No 253/2000/EC (OJ 2000 L 28/1) Socrates: they both define as follows: [...] institution, according to national legislation or practice, which offers qualifications or diplomas at that level [...]. 39 Commission proposal, COM(2002) 548, p. 9 40 Recital 14 and Article 1(Ib) Council doc. 13974/15, p. 8, 25. 41 Council doc. 15143/03, p. 5; Council doc. 6681/04, p. 2. 42 E. g. Germany allows the issuance of a residence permit for the application of admission; see section 16(1a) Aufenthaltsgesetz (German Residence Act), BGBl. I, p. 162 (2008) as subsequently amended. 43 German: ‘zugelassen’, Spanish: ‘admitido’, French: ‘admis’. 44 ‘Schriftliche Zusage’, see recital 12 of the German version of the Directive. 45 Commission Proposal, COM (2002)542, p. 11. 46 Council doc. 15143/03, p. 10; Council doc. 5528/04, p. 6; Council doc. 7589/04, p. 6. 38

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b) Course of study leading to a higher education qualification. The course of study attended must lead to a higher education qualification recognised by the concerned Member State. Examples for higher education qualifications are given in the Directive: diplomas, certifications and doctoral degrees. These expressions comprise first degrees as well as postgraduate degrees. 7 The expression ‘certificate’47 is rather broad. It covers any qualification of higher education and not only qualifications at the end of a study programme or qualifications leading to the granting of an academic title. This follows also from the German version of the Commission proposal where the term ‘certificate’ is translated with ‘Pru¨fungszeugnis’48 which includes ordinary exams. It is also supported by the fact that the English term ‘diploma’ is equivalent to the term ‘leaving qualification’, so that a narrow understanding of the expression ‘certificate’ would solely be a repetition. The definition of student in Decision 819/95/EC establishing the Community action programme ‘Socrates’49 does not oppose such a broad understanding of the term ‘certificate’. According to its Article 2, a student is defined as a person who ‘follow[s] higher education studies leading to a degree or diploma, up to and including the level of doctorate’. The quoted definition of the ‘Socrates’ programme aims to define the conditions to be met in the country of origin whereas Article 2(b) of this Directive defines the conditions which the person concerned has to fulfil in the host country. Therefore, it does not contest a broad interpretation of the term ‘certificate’ covering any qualification of higher education. 8 The course must be followed for the purpose of obtaining the qualifications offered within the course, which excludes persons attending classes as guest students.50 Correspondence courses qualify if the person concerned can prove that it is necessary for him/her to reside in the Member State’s territory regardless of the course’s formal designation as a ‘correspondence course’. 6

c) Full-time course as main activity, worker. To undertake a full time study programme must be the main activity of the student. The term ‘full-time course’ is not defined in the Directive. The Commission’s proposal excludes evening classes as one example not covered by the term.51 It is therefore left to the Member States to classify the courses offered and usually they will refer to definitions of the establishment offering the course. 10 Whether studies are the person’s main activity is determined by examining the person’s actual activity in the individual case and cannot be assumed from his/her formal inscription to a qualifying course of studies. One important issue to be determined is, if a person’s main activity is studying or working. Concerning this, Article 17(2) gives some guidance: An economic activity within the limits set by the Member State according to Article 17(2) ought not prevent the qualification of studies as main activity. A person may disqualify from being a student also by being a worker within the meaning of Article 3(2)(e) (see below Article 3 MN 11–15). 9

11

d) Preparatory courses. It is left to the national legislation whether persons doing preparatory courses are regarded as students and which kinds of studies are considered as preparatory courses. Subject to recital 10, the Member States should determine the duration and other conditions of the preparatory courses. Examples for possible preparatory courses are language courses or the attendance of a foundation year. It is 47

German: ‘Zertifikat’; French: ‘certificate’; Spanish: ‘certificado’. Commission Proposal, COM (2002) 548, p. 28. 49 Article 2(1) Decision 819/95/EC (OJ 1995 L 87/10) ‘Socrates’. 50 Commission Proposal, COM(2002) 548, p. 8. 51 Commission Proposal, COM(2002) 548, p. 8. 48

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questionable, whether practical trainings and other practical activities previous to the commencement of studies can equally be covered.52 The inclusion of practical activities could conflict with the distinction of students and unremunerated trainees. Since the recognition of persons participating in preparatory courses as students is left to the Member States’ legislation and as they are free to introduce more favourable provisions (see Article 4(2)), there is no need to clarify this question.

3. School-pupil (c) ‘School pupil’ covers persons following a recognised programme on the level of 12 secondary education. The original definition in the Commission’s proposal was amended by the Council to indicate that pupils may only be admitted to ‘follow a recognised programme of secondary education’ rather than ‘to follow courses at an accredited establishment of secondary education’.53 The Directive therefore covers the mobility of pupils only in the context of exchange schemes run by organisations recognised for that purpose by the Member State concerned in accordance with Article 8(1)(c), but not individual mobility which remains subject to the national legislation of the Member States.54

4. Unremunerated trainee (d) According to the Commission proposal, a trainee is a ‘third-country national whose 13 presence in the territory of a Member State is strictly limited in duration and closely connected with increasing their skills and qualifications in their chosen profession before returning to their own countries to pursue their careers’.55 It follows that the qualification of a person as unremunerated trainee is based on three criteria: First, the vocational training is strictly limited in time and connected to the career already begun in the country of origin. Second, the activity is unpaid. And third, the activity is subject to a training contract in accordance with Article 10(a). Especially from the first of these defining elements it follows that people receiving 14 complete vocational training, e. g. people in an apprenticeship, are not covered by the Directive and therefore remain – until the introduction of a separate Directive56 – subject to national labour law. This is supported by the English wording, which uses the term ‘trainee’ instead of ‘apprentice’, and even clearer by the initial German version, in which the term ‘Praktikant’ instead of ‘Auszubildender’ is used57 and the French version which uses the term ‘stagiaire’ instead of ‘apprenti’. The reference to the training contract in accordance with Article 10(a) argues in favour of this interpretation by talking about ‘unremunerated placement’ (‘unbezahlte Ausbildungsmaßnahme’ in the German version) instead of talking about the complete vocational training. Unremunerated internships within the framework of university studies are within 15 the scope of the term. This results from the EU concept of vocational training which is 52 The German Federal Administrative Court, for instance, has regarded practical activities preconditioned to the commencement of studies as preparatory activities, see Judgment of the German Bundesverwaltungsgericht (Federal Administrative Court), judgment of 3 March 1994, 1 B 190.93; Hailbronner, Ausla¨nderrecht Kommentar, § 16 AufenthG MN 12. 53 Article 2(d) Commission Proposal, COM(2002) 548. 54 Ibid, p. 8. 55 Commission Proposal, COM(2001) 386, p. 14, 16, 24 referring to already existing policy documents. 56 A Commission proposal regarding the admission conditions for remunerated trainees was already planned in 2005 (Commission Policy Plan on Legal Migration, COM(2005) 669, p. 8) and the idea resurfaced in the recast proposal concerning the Students Directive (see Articles 1(a), 2(f) and 12 Commission Recast Proposal COM(2013) 151). 57 Commission Proposal, COM(2002) 548, p. 16.

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rather broad comprising ‘any form of education which prepares for a qualification for a particular profession’58 and therefore includes university studies. 16 The training needs to be unremunerated. According to the European Commission, remuneration is to be defined as monetary benefits whereas benefits in kind and allowances to cover certain costs incurred by the trainees, pocket money or gratuities are not to be determined as remuneration in the sense of the Directive.59 Although in the ECJ’s jurisprudence, ‘remuneration’ is also a decisive criteria in determining the concept of ‘workers’ in the sense of Article 45 TFEU60, that very broad interpretation of the term ‘worker’ cannot be used by analogy to determine the scope of application of the Directive (see below Article 3 MN 13); otherwise Member States could largely restrict the effective application of the Directive. Due to the concerns of some Member States that the national labour law could be circumvented by employing unremunerated trainees instead of proper workers, the Council inserted Article 3(2)(e) and recital 11.61 For the differentiation of unremunerated trainees and workers see below Article 3 MN 14.

5. Establishment (e) 17

In its draft, the Commission proposed to define the term ‘establishment’ as a ‘public or private establishment of higher, vocational or secondary education accredited or financed by a Member State in accordance with its regulations or national administrative practice’.62 This was amended by the Council so that now either the institution or its courses can be recognised by the Member State concerned, without reference to any specific forms of education. This is due to the fact that in some Member States the accreditation refers to courses rather than to the establishment.63 The reference to the financing of the establishment by the host Member State was deleted by the Council without mentioning the reasons.64 According to recital 23, each Member State should ensure that relevant information, e. g. which establishments are recognised by a Member State for the purposes of the Directive, is made available to the general public.

6. Voluntary service scheme (f) 18

Due to an uncommented amendment by the Council, the definition in the Commission’s proposal of a ‘voluntary service scheme’ was changed and now reads to be a ‘programme of activities of practical solidarity based on a Community or State scheme, pursuing objectives of general interest.65 An example for such a scheme is the Community action programme ‘European Voluntary Service for Young People’.66 The Commission elucidates its understanding of the term ‘volunteer’ by defining it as ‘a person engaging in an activity of practical solidarity in relation to others and for his personal enrichment’; the activity must not be gainful and may not be remunerated; benefits in kind and pocket money are not regarded as remuneration.67 By referring to a Commu58

ECJ, Gravier, C-293/83, EU:C:1985:69, para 15. Commission Proposal, COM(2002) 548, p. 14. 60 See, in particular, ECJ, Lawrie-Blum, C-66/85, EU:C:1986:284, paras 16 and 17; Collins, C-138/02, EU:C:2004:172, para 26. 61 Council doc. 6681/04, p. 4. 62 Article 2(g) Commission Proposal, COM(2002) 548. 63 Council doc. 5528/04, p. 3. 64 Ibid, p. 3. 65 Article 2(h) Commission Proposal, COM(2002) 548 compared with Article 2(f) of the final Directive; the italicised words were added by the Council, the struck out words were deleted by the Council. 66 Decision 1686/98/EC (OJ 1998 L 214/1) establishing the ‘European Voluntary Service for Young people’. 67 Commission Proposal, COM(2002) 548, p. 9. 59

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nity or State scheme and due to recital 9, a closer definition of persons who can be considered as volunteers is left to the relevant programme.

7. Residence permit (g) Article 2(g) establishes the formal requirements of a residence permit under this Directive. Some Member States had concerns regarding the usage of the term ‘residence permit’ where they preferred to issue long term visas.68 The Commission took the view that the issue of residence permits on the basis of the standard format provided in Regulation 1030/2002/EC69 would be the preferable approach because of their common security features, the need to avoid a proliferation of different permits and in order to maintain a clear distinction between temporary residence permits and Schengen Visa.70 Finally, a three-part compromise was achieved which contained as compensation for the maintenance of the term ‘residence permit’: (1) a definition of the term residence permit (Article 2(g)) (2) a derogation clause whereby Member States are not obliged to issue permits in accordance with this Directive in the form of a residence permit for a period of two years after the entry into force of this Directive and (Article 23(b)) (3) a clause in which it is spelled out that Member States shall neither be obliged to renew a residence permit under this Directive once the specific period for which it was granted has ended, nor to take into account the time during which a thirdcountry national under this Directive has resided in their territory for granting them further rights under their national law (Article 24).71 According to Article 1(2)(a) Regulation 1030/2002/EC ‘residence permit shall mean any authorisation issued by the authorities of a Member State allowing a third-country national to stay legally on its territory with the exception of: (i) visa (…)’. Therefore, visas may not be considered as resident permits in the sense of this Directive. For the discussion of other issues relating to the use of visas and residence permits, see Article 5 MN 2–4 and Article 20 MN 2.

Article 3 Scope 1. This Directive shall apply to third-country nationals who apply to be admitted to the territory of a Member State for the purpose of studies. Member States may also decide to apply this Directive to third-country nationals who apply to be admitted for the purposes of pupil exchange, unremunerated training or voluntary service. 2. This Directive shall not apply to: (a) third-country nationals residing in a Member State as asylum-seekers, or under subsidiary forms of protection, or under temporary protection schemes; (b) third-country nationals whose expulsion has been suspended for reasons of fact or of law; 68

Council doc. 5528/04, p. 11; Council doc. 6892/04; Council doc. 7238/04, p. 2–3. Council Regulation (EC) No 1030/2002 (OJ 2002 L 157/1) uniform format for residence permits for third-country nationals. 70 Council doc. 6681/04, p. 11. 71 Council doc. 7238/04, p. 2 et seqq. 69

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(c) third-country nationals who are family members of Union citizens who have exercised their right to free movement within the Community; (d) third-country nationals who enjoy long-term resident status in a Member State in accordance with Council Directive 2003/109/EC of 25 November 2003 on the status of third-country nationals who are long-term residents(5) and exercise their right to reside in another Member State in order to study or receive vocational training; (e) third-country nationals considered under the national legislation of the Member State concerned as workers or self-employed persons. Content I. General remarks and drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Scope of application (Article 3(1)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Exclusions from the scope (Article 3(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Asylum seekers, persons under subsidiary/temporary protection (a) . 2. Third-country nationals whose expulsion has been suspended (b). . . . 3. Family members of Union citizens (c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Long-term residents (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Workers and self-employed persons under national legislation (e) . . .

1 3 7 7 8 9 10 11

I. General remarks and drafting history Article 3 limits the personal scope of application of the Directive in several respects. First, Article 3(1) declares the application of the Directive to students obligatory whereas the application to school pupils, unremunerated trainees and volunteers remains in the discretion of each Member State. Second, Article 3(2) excludes certain categories of persons from the scope of the Directive. 2 In the Commission’s original proposal, the application of the Directive to all four categories of people was mandatory. This provoked controversial discussions in the Council. Different amendments were discussed of which one was finally adopted.72 1

II. Scope of application (Article 3(1)) By giving the Directive optional character in regard to school pupils, unremunerated trainees and volunteers, the degree of harmonization for these categories is minimized. Nevertheless, the provisions of the Directive set up for the optional categories may have an impact on the interpretation of the Member States’ domestic law, even if the Member State did not transpose them into national law.73 4 According to the Commission report,74 ten Member States decided to apply the Directive to all three of the optional categories, and a further five Member States decided to apply it to one or two of these categories. The remaining nine Member States transposed only the provisions relating to students. According to the Commission’s Explanatory Memorandum, ‘Member States must forthwith inform the Commission of all changes to their legislation, regulations and administrative practices and insert in them a reference to this Directive.’75 If a Member State has in this way chosen to 3

(5)

OJ L 16, 23.1.2004, p. 44. Council doc. 6737/04. 73 Hailbronner, Ausla ¨ nderrecht Kommentar, § 16 AufenthG MN 6. 74 Commission Report, COM(2011) 587, p. 3. 75 Commission Proposal, COM(2002) 548, p. 21. 72

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transpose the Directive concerning any of the optional categories, its choice obliges it to transpose all the relevant provisions of the Directive – unless of course the provisions themselves leave margin to the Member States76 or if the national legislation constitutes a more favourable provision under Article 4. An important exception to the optionality of the Directive’s application is the 5 obligation in Article 6(2) to facilitate the admission procedure for all the categories (see below Article 6 MN 14). For the recast, the Commission proposed to add remunerated training and au pairing 6 to the scope, and to declare the Directive’s application mandatory for all its categories.77 The Parliament welcomed this, but the Council rejected it.78 As a compromise, the final deal between the institutions foresees the new Directive to include all the categories in its scope but is optional for school pupils, au pairs and volunteers other than those participating in the European Voluntary Service.79

III. Exclusions from the scope (Article 3(2)) 1. Asylum seekers, persons under subsidiary/temporary protection (a) Article 3(2)(a) excludes persons residing in a Member State as asylum seekers, under 7 subsidiary forms of protection, and under temporary protection schemes from the Directive’s scope. Since recognized refugees are not excluded, the Directive’s provisions apply to them to the extent of granting more favourable rights. The difference in treatment between refugees on the one hand and persons under subsidiary/temporary protection on the other hand dates back to the former Asylum Qualification Directive 2004/83/EC (Article 24). The recast Directive will exclude applicants and beneficiaries of international protection and of temporary protection completely.80 Questionable is the exclusion of persons under national forms of protection. As Article 3(2)(a) speaks of ‘forms’ and ‘schemes’ in plural, they may be taken to be excluded also. The recast refers specifically to EU law81 hence under the future Directive, persons under national forms of protection will not be excluded anymore.

2. Third-country nationals whose expulsion has been suspended (b) Article 3(2)(b) excludes third-country nationals whose expulsion has been suspended. 8 The common motive is that the proper functioning of national rules on termination of residence should not be undermined by recourse to the Directive. The Commission does not give any examples for relevant groups of persons covered by this clause. It can be assumed, that the provision is meant to be a catchall provision for all groups of persons who are not covered by Article 3(2)(a). The exclusion applies irrespective of the reasons for suspension. Therefore prohibition of refoulement on the grounds of Article 3 ECHR82 is covered by this provision.

76 Commission Report, COM(2011) 587, p. 3. Unlike this Wiesbrock, Legal Migration, p. 430 stating that ‘national legislation [regarding the optional categories] can only be compared to, but not assessed in terms of compliance with, the Directive.’ 77 Article 2 Commission recast Proposal, COM(2013) 151. 78 Council doc. 1652/14, p. 43–44. 79 Council doc. 13974/15, p. 21–22. 80 Council doc. 13974/15, p. 22. 81 Ibid. 82 ECtHR, Judgment of 7 July 1989, No. 14038/88, Soering v United Kingdom.

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3. Family members of Union citizens (c) 9

Excluded from the application are third-country nationals who are family members of Union citizens who have exercised their right to free movement within the EU. The reason for this is that Union citizens and their third-country national family members have a special legal status arising from the European market freedoms. Their rights of residence, free movement and equal treatment are specified in the Free Movement Directive 2004/38/EC. The term ‘family member’ in the sense of Article 3(2)(c) is defined in Article 2(2) Free Movement Directive 2004/38/EC.

4. Long-term residents (d) 10

Third-country nationals who enjoy long-term resident status in a Member State are excluded from the scope of the Directive since their right to reside in another Member State for the purposes of study or vocational training is covered by Article 15 Long Term Residents’ Directive 2003/109/EC.

5. Workers and self-employed persons under national legislation (e) Article 3(2) was extended by (2)(e) and recital 11 was inserted after Spain supported by Greece had repeatedly asked to leave more discretion to the Member States concerning specifically the admission of medical students whose studies involve paid training.83 12 The interpretation of this clause raises questions. The terms ‘worker’ and ‘selfemployed persons’ are not defined by Article 3(2)(e) but are left to the Member States to define ‘under national legislation’. As much as this seems to be a clear reference to national law, there need to be some limits to this discretion derived from European law if the effet utile of the Directive is not supposed to be left to Member States’ power to exclude a wide range of persons unilaterally from the coverage of the Directive. 13 One EU concept of ‘worker’ can be found in Article 45 TFEU. It covers persons performing services of some economic value for and under the direction of another person in return for which they receive remuneration.84 If such a wide concept of ‘worker’ was applied to Article 3(2)(e), there would be barely any scope for the application of the Directive concerning unremunerated trainees. Furthermore, the right to work for students subject to Article 17 would be worthless as every student exercising this right would qualify as worker and therewith be excluded from the scope of the Directive. 14 Specifically concerning unremunerated trainees, the distinction between worker and unremunerated trainee needs to depend on the nature of the activity carried out by the person concerned: If the training aspect outweighs the working performance, the person is to be regarded as trainee. This interpretation is supported by recital 11 pursuant to which ‘[t]hird-country nationals who fall into the categories of unremunerated trainees and volunteers and who are considered, by virtue of their activities and the kind of compensation or remuneration received, as workers under national legislation are not covered by this Directive.’85 The Commission’s commentary on its proposal supports this mode of delimitation stating that ‘[t]he difference (…) is defined to the legal instrument linking the trainee and the entity (…) which in the case of trainees covered by this proposal is a training contract (…)’.86 11

83

Council doc. 5528/04, p. 4; Council doc. 6681/04, p. 4. ECJ, Lawrie-Blum, C-66/85, EU:C:1986:284, para. 17; ECJ, Levin, C-53/81, EU:C:1982:105, para 161. 85 Emphasis added. 86 Commission Proposal, COM(2002) 548, p. 14. 84

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In Raccanelli, the ECJ had to decide on the applicability of the Community rules on 15 free movement of workers on a scholarship-financed research period at a German scientific institute (Max-Planck-Gesellschaft) for the purpose of preparing a dissertation.87 The complainant must be considered as a ‘worker’ in the sense of Article 45 TFEU provided that he/she performs activities for a specified period of time under the direction of the institute and receives remuneration for these activities. In order to determine whether the activity in question qualifies as working activity, the national court has to examine the contract and the arrangements for giving effect to the contract and related documents.88 Although the decision leaves scope for interpretation, the conclusion may be drawn that graduate students, research trainees or volunteers are not covered by the Directive if the contract and related arrangements provide for an obligation to perform certain activities under the direction of the respective institution and for which remuneration is paid. National legislation and practice attributing a certain activity to labour law and social security law on ‘workers’ may be used as additional criteria which must be taken into account although they cannot change the content of the Directive.

Article 4 More favourable provisions 1. This Directive shall be without prejudice to more favourable provisions of: (a) bilateral or multilateral agreements between the Community or the Community and its Member States and one or more third countries; or (b) bilateral or multilateral agreements between one or more Member States 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 4 sets up collision norms determining the relation between this Directive and 1 other provisions which result from international agreements or national law governing the same subject. It is a modified version of the ‘more favourable provision clause’ which has been inserted into most directives on migration and asylum law.89 More favourable provision clauses are to make sure that EU harmonisation does not lead to national law becoming less favourable as a result of harmonisation (no race to the bottom). The limits of derogations under Article 4 do not hinder the Member States to have deviating rules for persons ‘to whom the Directive does not apply’. This includes Member States’ right to issue national authorisations for the purposes mentioned in this Directive which of course will not provide the holder with the rights mentioned in the Directive.90 Whether a provision can be considered more favourable may be debatable. In the 2 context of the Directive, Article 4(2) gives some guidance for this determination: the comparison is to be made from the third-country national’s perspective ‘to whom [the provision] applies’. The Commission reiterates this interpretation by stating that 87

ECJ, Raccanelli, C-94/07, EU:C:2008:425, para 35. Ibid. para 37. 89 Concerning more favourable provisions clauses in general, see above Hailbronner/Thym, Part A, MN 28–33. 90 See for the explicit statement of this in recital 21c of the recast Directive, Council doc. 13974/15, p. 11. 88

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‘[m]ore favourable provisions are allowed as long as they do not water down the level of rights already granted to third-country nationals by the Directive’.91 Another issue which remains rather unclear is the precise scope of the national discretion arising from more favourable provision clauses. In Ben Alaya, the ECJ clarified that under Article 4 only more favourable provisions are possible but not stricter ones, because the latter would be contrary to the objective pursued by Article 4.92 In Payir, the ECJ affirmed that Member States may deviate from the Directive’s strict rules in Article 17 on access to the labour market (see also below MN 7) and hence affirmed that Member States may deviate from the Directive even where it is mandatory.93 Even so, this judgment should be read carefully: The difficulty in determining Member States’ margin arising from more favourable provision clauses arises from the multi-layered system of EU law and national law; where too much margin is granted to the Member States, EU law will lose its effet utile and harmonisation will not result. Therefore, more favourable provision clauses cannot be a blank cheque for Member States to undermine EU harmonisation.94 In light of this, the judgment should not be abstracted from the situation it concerned: It concerned only situations, where the person is already admitted to the EU and wants to be granted rights which go further than those connected to his/ her admission status, i. e. student status. In contrast, it did not deal with Member States’ margin concerning mandatory admission conditions. Here, the ECJ has shown a more differentiated approach, which did not just disappear in Payir.95 Article 4 of the recast will allow for national more favourable provisions only concerning specific issues, namely the content of the hosting agreement, the duration of authorisation, some of the rights, procedural guarantees, and transparency.96 Article 4(1) is to ensure that bilateral or multilateral agreements of the EU or the Member States with third countries will continue to apply if they are more generous to the third-country national concerned. Several bilateral and multilateral agreements establish cooperation programmes in higher and vocational education, e. g. the EU-US programme ‘Atlantis’97 or the cooperation between the EU and Canada98. The EFTA States Norway, Iceland and Lichtenstein99 and Turkey100 participate in the intra-EU programme ‘Erasmus’, while Switzerland101 did, but was suspended in 2014.102 Also, bilateral and multilateral agreements which are not directed specifically at the categories of persons covered by the Directive may still include provisions which lead to 91

Commission Report, COM(2011) 587, p. 3–4. ECJ, Ben Alaya, C-491/13, EU:C:2014:2187, para 32. The Court did not discuss what exactly the objective of Article 4(2) (and any other more favourable provision clause) is and so missed the opportunity to give more guidance regarding the general dogma of more favourable provision clauses. 93 ECJ, Payir and Others, C-294/06, EU:C:2008:36. 94 See on this generally, above Hailbronner/Thym, Part A, MN 28–33. 95 ECJ, B and D, joined cases C-57/09 and C-101/09, EU:C:2010:661, para 115 et seqq; see below Do ¨ rig Asylum Qualification Directive 2011/95/EU, Article 3 MN 9–10. 96 Council doc. 13974/15, p. 26. 97 Council Decision 2006/910/EC (OJ 2006 L 346/33) Agreement between the EC and the US. 98 Council Decision 2006/964/EC (OJ 2006 L 397/14) Agreement between the EC and Canada. 99 Article 78 of the Agreement on the European Economic Area, in its updated form of 1 August 2007 and Article 4 of its Protocol 31 on cooperation in specific fields outside the four freedoms. 100 IP/03/56 of 16 January 2003. 101 Council Decision 2010/195 (OJ 2010 L 87/7) Agreement between the EU and the Swiss Confederation. 102 Switzerland’s participation has been suspended following a Swiss referendum in February 2014 that limits access to Switzerland for EU citizens. See European Commission, Information Note on the Participation of Switzerland in Erasmus+, 9 February 2014 available at http://ec.europa.eu/programmes/ erasmus-plus/news/2014/20140209_en.htm [last accessed: 15 June 2015]. 92

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a more favourable treatment of them. E. g. according to the EU-Turkey Association Agreement interpreted in Gu¨rol, Turkish nationals studying in an EU Member State can claim maintenance grants.103 In Payir, the ECJ held that a Turkish student taking up employment during his/her study may obtain the status of a worker under Article 6(1) Decision 1/80,104 and may then rely upon the – more favourable – rights granted by the Association Council Decision 1/80.105 The Court argued that the Directive – as of its own more favourable clause in Article 4(1) – does not intend to determine how Association law ought to be interpreted.106 The Court’s decision does not deal with the question of a probably unintended combination of rights under a generally applicable Directive and the privileged status of Turkish workers. It follows the general line of interpreting Association law irrespective of a State’s admission of a Turkish national as a student or under any other residence status.107 It ensures the primacy of Association Law as international agreement over EU secondary legislation108 and the uniform application of it.109

CHAPTER II CONDITIONS OF ADMISSION Article 5 Principle The admission of a third-country national under this Directive shall be subject to the verification of documentary evidence showing that he/she meets the conditions laid down in Article 6 and in whichever of Articles 7 to 11 applies to the relevant category. Content I. II. III. IV.

General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The meaning of ‘admission’: visa and residence permit . . . . . . . . . . . . . . . . . . . . 2 Verification of documentary evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Member State discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 1. Objections to mandatory first admission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 2. Ben Alaya: affirmation of mandatory first admission, but…............ 12

I. General remarks Article 5 establishes the general principle that a person may only be admitted to a 1 Member State’s territory if he/she meets the general and specific conditions set out for each category of persons. 103 See Article 9 of EEC-Turkey Association Council Decision No 1/80 of 19 September 1980, on the development of the association between the EC and Turkey, which has never been published in the Official Journal, as interpreted in ECJ, Gu¨rol, C-374/03, EU:C:2005:435, paras 19 et seqq. and 38. 104 Ibid. 105 ECJ, Payir and Others, C-294/06, EU:C:2008:36. 106 Ibid, para 48. In the specific case, the Directive was not even applicable, first because the United Kingdom has not opted into the application of the Directive and secondly because the case was referred to the ECJ well before the Directive was to be transposed (12 January 2007). 107 E. g. ECJ, Ertanir, C-98/96, EU:C:1997:446, para 19 et seqq. 108 In ECJ, Soysal, C-228/06, EU:C:2009:101, para 59, the Court used this argument; it’s unclear why it was not employed in Payir. See also above Hailbronner/Thym, Part A, MN 56. 109 Peers, Journal of Immigration Asylum and Nationality Law 23 (2009), 197, 202.

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II. The meaning of ‘admission’: visa and residence permit Due to concerns of some Member States that the Commission proposal restricted their practice to grant separate permits for entry and residence,110 the provision’s original wording was changed and now does not contain any reference to a certain type of authorisation, but instead speaks in general of ‘admission’. The amendment grants flexibility to the Member States to maintain their national procedure. Confirming this, recital 17 states that ‘[in] order to allow the initial entry into their territory, Member States should be able to issue in a timely manner a residence permit, or if they issue residence permits exclusively on their territory, a visa.’ (See for the discussion of other issues relating to the use of visas and residence permits Article 2 MN 19–22.) 3 This change of wording and the process leading to it clarify that Articles 5–11 are applicable to the whole process of admission. Member States who implement Articles 5–11 only concerning residence permits issued on their territory but not concerning the visas necessary to enter their territory are breaching Articles 5–11.111 The most common breaches are the addition of conditions and the grant of complete discretion to the diplomatic representation112 (see also the discussion regarding Member State discretion below MN 8–16). Unlike Articles 5–11, Article 18 refers only to residence permits but must still be interpreted to apply also to visas (see for details below Article 18–20 MN 2). 4 The recast will put an end to the unclarity around this by speaking of ‘authorisation’ which includes residence permits and visas, and by clarifying that visas are to be issued if the admission conditions are fulfilled.113 2

III. Verification of documentary evidence The clause on verification of documentary evidence precedes the specific conditions of admission and covers all conditions, including those which do not spell out their own reference to being proven by the applicant (such as the condition of having sickness insurance in Article 6(1)(c) in contrast to the provision of proof concerning the fee in Article 6(1)(e)). 6 Recital 15 covers evidence, but limits itself to the ‘grounds of the application’, hence the question, if the applicant is really planning to study/volunteer/be trained/be an au pair. Only(!) concerning these ‘grounds of the application’, recital 15 authorizes Member States to ask for evidence only ‘in case of doubt’ which means that Member States may ask for evidence only when an application gives reason for doubt and excludes a set of requirements applicable regardless of any doubt.114 This interpretation is supported by the last phrase of the recital connecting the evidence requirement with the fight against abuse and misuse, hence the possibility of using the Directive in order to do things other than studying/volunteering/etc.115 Finally, the recast proposal in its current negotiated state spells this out even clearer; recital 29 states: ‘In case of doubts 5

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Council doc. 15143/03, p. 4, 8. Commission Report, COM(2011) 587, p. 6; Commission Impact Assessment, SWD(2013) 77, p. 15–16. 112 Ibid. 113 Article 3(r)–(s), Article 5(2), Article 29 Council doc. 13974/15. 114 Some Member States have transformed the provisions by requiring a plan of studies, see e. g. for the Spanish legislation Abarca Junco/Go´mez-Urrutia, Revista Electro´nica de Estudios Internationales, 17 (2009), p. 1, 9. 115 See on the issue of abuse, above Thym, Part C I, MN 48–49. 111

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concerning the grounds of the application for admission, Member States should be able to carry out appropriate checks or require evidence in oreder to assess, on a case by case basis, the applicant’s intended research, studies, training, volunteer service, pupil exchange scheme or educational project or au pairing and fight against abuse and misuse of the procedure set out in this Directive.116 Whether the migration authority finds there to be doubts concerning the grounds of application, remains within a wide discretion of that authority (see below MN 15–16). Which evidence the Member States require from the applicants is not specified in 7 the Directive and hence is left to the Member States’ discretion which naturally may lead to different requirements and hence makes application procedures diverse across the EU – not concerning the conditions to be met but concerning the way to meet them. However, the principle of proportionality forms an important limitation for this discretion forbidding requirements in relation to third countries where they may be difficult or even impossible to meet, e. g. if the requested document does not exist.117

IV. Member State discretion One fundamental issue concerning the Directive is the issue of Member States’ 8 discretion over first admission.

1. Objections to mandatory first admission States traditionally have an affinity to keeping admission decisions within their 9 national sovereignty. This shows once again in the drafting history of the Directive: The original wording of Article 4–6 and 8–10 of the Commission’s proposal (Article 5– 7 and 9–11 of the final Directive) stated that ‘Member States may issue a (student/pupil exchange/unremunerated trainee/volunteer) residence permit only if …’118 and hence arguably left discretion to the Member States if they did or did not issue the residence permit.119 By amending these articles, the Council (only) intended to delete the reference to a special residence title (see above MN 2). The discussions in the Council indicate that the Council’s working group acted always on the assumption that first admission would remain in the discretion of the Member States and even the Commission agreed to this: ‘DELETED [a Member State] suggested that the wording of the Article should be amended in order to clearly state that the authorisation of the third-country national to enter and reside in the territory of a Member State lies in their discretion. [The Commission] took the view that the Member States maintain full discretion at this matter.’120

This shows that the amendment of the wording was not intended to change the content of these articles from a discretionary decision to a mandatory one. The drafting history of Article 17 as well indicates that the Member States never wanted to give up their discretion over first admission: The second sentence of Article 17(1) of 116

Council doc. 13974/15, p. 14. Commission Proposal, COM(2002) 548, p. 11 concerning only documentary evidence regarding the public order proviso but the thought is applicable to all documentary evidence. 118 Ibid; emphasis added. 119 Ibid, p. 13 stressing the ‘general discretion’ Member States have regarding first admission; like this also Kocharov, ‘What lntra-Community mobility for third-country workers?’ EL Rev 33 (2008), p. 913, 918. 120 Council doc. 15143/03, p. 8; emphases added; the view of the Commission apparently had changed by the time it gave its implementation report, see Commission Report, COM(2011) 587, p. 6; see on the drafting history also Hoogenboom, EJML 15 (2013), p. 387, 399–400. 117

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the Commission’s proposal dealing with visa facilitation was moved to the recitals specifically in order to avoid any obligation for the Member States concerning the issuance of visas.121 10 Also, Article 8 has been used in order to establish an argumentum a contrario to support Member States’ discretion over first admission decisions:122 While Article 8(1) governing intra EU mobility of students explicitly entitles third-country nationals to receive a residence permit if all relevant conditions are met (see below Article 8 MN 2), there is no such explicitly worded entitlement concerning first admission.123 If there is an explicit entitlement to secondary movement, its absence concerning first admission argues that there is no entitlement to first admission.124 11 Another argument for the existence of Member State discretion over first admission might be made from the rather strange situation that Article 8 demands the student to fulfil more criteria for secondary movement than for first admission:125 To leave first admission to the discretion of the Member States, but not secondary movement, prevents this contradiction.126

2. Ben Alaya: affirmation of mandatory first admission, but… The ECJ in Ben Alaya127 rejected the idea that Member States have discretion to add admission conditions to the ones of the Directive or to leave discretion to their national authorities once the applicant fulfils the Directive’s conditions for admission and affirmed an obligation of the Member States to admit applicants who fulfil the Directive’s admission conditions.128 The judgment concerned a Tunisian who applied for a student visa under the Directive in order to study in Germany. Hence, the case concerned only student visas, but the issue is the same with all the Directive’s categories of persons (once of course the respective Member State has opted to apply the Directive to the relevant category) and hence, the Court would presumably decide the same concerning the other categories of persons. 13 The Court’s reasoning starts from the wording and general structure of the Directive and concludes from Articles 5–7 and 12 that the Member State ‘is to issue a student residence permit’ if the Directive’s conditions are fulfilled.129 This interpretation may be rejected on two grounds. First, the content of these articles: Article 12 only regulates the 12

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Council doc. 7463/04, p. 11; Council doc. 7589/04. Peers and others (eds), EU Immigration and Asylum Law Volume 2, p. 203. 123 This is the case, as long as Article 12 is interpreted as not to regulate the substantial conditions for issuance (see below MN 13 and below Article 16 MN 1). 124 It seems, the Commission had this view when introducing its proposal by stressing that this is part of the difference between first admission and mobility, see Commission Proposal, COM(2002) 548, p. 13. It held the opposite view, once it gave its report on implementation, see Commission Report, COM(2011) 587, p. 6. 125 See on this Wiesbrock, EL Rev. 35 (2010), p. 455, 466 referring to the Swedish government who did not see any reason to implement Article 8 because students could just apply for first admission instead. 126 One could argue that there is no contradiction and thus it does not need to be prevented: A person already admitted to a first Member State as a student may at any time apply to another Member State in the category of first admission (see Wiesbrock, Legal Migration, p. 489). But especially in the case in which the student wants to do part of his/her studies already commenced in the first Member State, he/ she will not succeed with this endeavour in the category of first admission because he/she will not follow a complete course in the second Member State (see Article 2(b)). Hence, Article 8 has its own raison d’eˆtre without leaving first admission to the discretion of the Member States. 127 ECJ, Ben Alaya, C-491/13, EU:C:2014:2187. 128 Before the judgment like this: Wiesbrock, Legal Migration, p. 424; Hoogenboom, EJML 15 (2013), p. 387, 397–400. 129 ECJ, Ben Alaya, C-491/13, EU:C:2014:2187, paras 23–25; like this also Commission Report, COM(2011) 587, p. 6; Wiesbrock, Legal Migration, p. 424; Hoogenboom, EJML 15 (2013), p. 387, 398. 122

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time for which a residence permit is to be issued, but not the substantial conditions for issuance; Article 5–7 only regulate the conditions the student has to fulfil in order to receive an authorisation but do not explicitly say anything about the State’s response to that fulfilment. Second, the drafting history shows that the change from ‘may’ to ‘shall’ in Articles 5–7 and 12 does not mean a change from discretionary to mandatory admission (see above MN 9).130 Next, the ECJ argued with the objective of the Directive being ‘to promote the 14 mobility of students who are third-country nationals to the EU for the purpose of education, that mobility being intended to promote Europe as a world centre of excellence for studies and vocational training.’ The Court went on to refer in particular to recital 6 which states that the approximation of the national legislation of the Member States relating to the conditions of entry and residence is part of that objective. To allow Member States to introduce additional conditions for first admission, the Court finds, would be contrary to this objective.131 Allowing for stricter rules than the Directive provides for would also be contrary to the objective of Article 4(2).132 In Conclusion, the ECJ held that a Member State is ‘obliged to admit to its territory 15 a third-country national […], where that national meets the conditions for admission exhaustively listed in Articles 6 and 7’.133 However, without discussing this in any detail, the Court stated that the Member States’ authorities do have discretion relating ‘to the conditions laid down in Articles 6 and 7 of that directive and, within that context, to the assessment of the relevant facts in order to determine whether those conditions are met […].134 The same ‘fact-finding’ discretion had been affirmed by the ECJ concerning the conditions for a uniform visa under the Visa Code Regulation (EC) No 810/2009.135 This ‘fact-finding’ discretion does not refer to the substantive law question whether Member States have discretion over admission, but to the procedural law question of the intensity of judicial review over administrative decisions. This is a question of general administrative law and has been dealt with by the ECJ concerning EU administrative procedures (where the ECJ itself is the judicial review body)136 and national administrative procedures (where national courts are the judicial review bodies)137. Concerning complex administrative assessments in national administrative procedures such as the issuance of a visa to a third-country student, the Court’s central statements were made in Upjohn, where the Court held: According to the Court’s case-law, where a Community authority is called upon, in the performance of its duties, to make complex assessments, it enjoys a wide measure of discretion, the exercise of which is subject to a limited judicial review in the course of which the Community judicature may not substitute its assessment of the facts for the assessment made by the authority concerned. Thus, in such cases, the Community judicature must restrict itself to examining the accuracy of the findings of fact and law made by the authority concerned and to verifying, in particular, that the action taken by that authority is not vitiated by a manifest error or a misuse of powers and that it did not clearly exceed the bounds of its discretion (see, in particular, Joined Cases 56/64 and 58/64 Consten and Grundig, Case 55/75 Balkan130 Concerning the other categories of persons, the same is true for the content and drafting history of Article 9–11 and 13–15. 131 ECJ, Ben Alaya, C-491/13, EU:C:2014:2187, paras 29–30. 132 Ibid, para 32. 133 Ibid, para 36. 134 Ibid, para 33; emphasis added; the German text speaks here of ‘Beurteilungsspielraum’ whereas in the remainder of the judgments, it speaks of ‘Ermessen’. 135 ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 56–62; again, the German text speaks of ‘Beurteilungsspielraum’. See also above Meloni, Visa Code Regulation (EC) No 810/2009, Article 32 MN 3. 136 See Craig, EU Administrative Law, 2nd ed. (OUP 2012), p. 400–445; Hofmann/Rowe/Tu ¨ rk, Administrative Law and Policy of the European Onion (OUP 2011), p. 491–505. 137 See Tridimas, The General Principles of EU Law, 2nd ed. (OUP 2006), p. 447–453; Hofmann/Rowe/ Tu¨rk, Administrative Law and Policy of the European Onion (OUP 2011), p. 505–506.

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Import Export, paragraph 8, Case 9/82 Øhrgaard and Delvaux, paragraph 14, Case C-225/91 Matra, paragraphs 24 and 25, and Case C-157/96 National Farmers’ Union, paragraph 39).138

Upjohn dealt with the British judicial system which was criticized by the applicant for not providing the courts with the possibility to fully review the administrative authorities’ decisions.139 The ECJ held that this administrative discretion was acceptable because of the complex nature of the administrative assessment, and set limits only for extreme cases (which were still not observed by the British system). Ben Alaya concerned the German administrative and judicial system where the usual judicial practice is different than the one in the UK: Usually, the fact-finding of the national authorities is under full judicial review by the courts. Whether Upjohn, and now Ben Alaya and Koushkaki can be interpreted as a mandate to the Member States’ national administrative and judicial systems to grant a wide measure of discretion to their administrative authorities whenever the administrative fact assessment is complex, is questionable.140 In Ben Alaya, the ECJ refers the matter back to – not the migration authorities but – in line with the German judicial practice – to the national courts to decide whether the conditions have in fact been fulfilled for the issuance of a residence permit.141 It can be concluded that it is a matter of national procedural autonomy to what extent such discretion is to be controlled by the national courts: The ECJ does not require full judicial review (Upjohn) but if Member States provide for it (Ben Alaya), this is acceptable to the ECJ. The ECJ has an other opportunity to clarify the issue in a preliminary reference from Gemany.141a 16 Draft Article 5 of the recast proposal142 translated Ben Alaya by stressing the obligation to grant the authorisation (including residence permits and visas) once all the conditions are fulfilled; this has been restricted by the Council adding Article 5a which allows for rules on admission volumes to be a reason for rejection or inadmissibility143 and hence opens the door for the Member States to override Ben Alaya. Whether the restriction is compatible with Article 79(5) TFEU may be challenged on the wording of Article 79 talking of 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’.144 If this needs explicit stating, then it may be argued that for other groups of migrants listed in Article 79 national volume determinations are not permissible.

Article 6 General conditions 1. A third-country national who applies to be admitted for the purposes set out in Articles 7 to 11 shall: 138

ECJ, Upjohn, C-120/97, EU:C:1999:14, para 34 (emphases added; quotations shortened). For a contribution evaluating the developments since this judgment from a British/Irish perspective see O’Reilly, ‘Errors of fact and errors of law as grounds for judicial review’, Irish Jurist 47 (2012), 1. 140 For potential implications for the German administrative and judicial system: Huber, ‘Verweigerung eines einheitlichen Schengen-Visums’, Neue Zeitschrift fu¨r Verwaltungsrecht (2014), 289, 294; Stelkens, in: Stelkens/Bonk/Sachs, Verwaltungsverfahrensgesetz, 8th ed (C.H. Beck, 2014), Europa¨isches Verwaltungsrecht MN 220–225; Stelkens, ‘Der Eigenwert des Verfahrens im Verwaltungsrecht’, Deutsche Verwaltungsbla¨tter 17 (2010), 1078, 1084–1086 with more references. 141 ECJ, Ben Alaya, C-491/13, EU:C:2014:2187, para 35. 141a Verwaltungsgericht (lower administrative court) Berlin, Beschluss 10.10.2015, VG 19 K 355.13 V. 142 Commission Recast Proposal COM(2013) 151. 143 Council doc. 16512/14, p. 55. 144 Emphasis added. 139

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(a) present a valid travel document as determined by national legislation. Member States may require the period of validity of the travel document to cover at least the duration of the planned stay; (b) if he/she is a minor under the national legislation of the host Member State, present a parental authorisation for the planned stay; (c) have sickness insurance in respect of all risks normally covered for its own nationals in the Member State concerned; (d) not be regarded as a threat to public policy, public security or public health; (e) provide proof, if the Member State so requests, that he/she has paid the fee for processing the application on the basis of Article 20. 2. Member States shall facilitate the admission procedure for the third-country nationals covered by Articles 7 to 11 who participate in Community programmes enhancing mobility towards or within the Community. Content I. General remarks and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. General requirements (Article 6(1)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1. Documents (Article 6(1)(a) and (b)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2. Sickness insurance (Article 6(1)(c)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3. No threat to public policy, public security or public health (Article 6(1)(d)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 4. Payment of procedure fees (Article 6(1)(e)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 III. Facilitated admission (Article 6(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

I. General remarks and drafting history Article 6(1) lays down the general conditions for admission to be met by a third- 1 country national in addition to the specific conditions set up by Article 7–11. Article 6(2) obliges the Member States to facilitate the admission procedures for thirdcountry nationals who participate in EU programmes. In the course of the amendment of Article 5 (see above Article 5 MN 2), Article 6, 7, 2 9–11 were amended as well. In all these articles the introductory phrase stating that ‘Member States may issue a (…) residence permit to a third-country national (…) only if (…)’145 the conditions are met, was amended to state ‘[a] third-country national who applies to be admitted (…) shall’146 meet the following conditions.

II. General requirements (Article 6(1)) 1. Documents (Article 6(1)(a) and (b)) According to Article 6(1)(a) an applicant for a residence permit has to present a valid 3 travel document, i. e. a passport or an equivalent travel document. The Council added the term ‘as determined by national legislation’ to specify that it is left to the Member States’ legislation to determine what kind of travel document will be required. Member States can also specify that the travel document has to be valid for the whole duration of the planned stay. Additionally, in case of minors – defined under the national legislation of the host 4 Member State – the applicant needs a parental authorisation for the planned stay, see 145 146

The first paragraph of Article 5–10 of the proposal; emphasis added. The first paragraph of Article 6–11 of the final Directive; emphasis added.

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Article 6(1)(b). The term parental authorisation is to be understood in a legal sense and refers to the person/s who is/are legally entrusted with the parental responsibility pursuant to the national legislation.

2. Sickness insurance (Article 6(1)(c)) 5

The requirement of Article 6(1)(c), that an applicant has to have sickness insurance, intends to avoid high costs for the general public. The sickness insurance must cover at least all risks normally covered by obligatory legal sickness insurances pursuant to the national legislation. A sickness insurance not covering diseases which are already known at the beginning of the insurance coverage is not sufficient.147 Travel sickness insurance is only sufficient if it covers the whole period of the stay and not just part of it.148 Article 7(2) determines that students who as a result of the enrolment to an establishment of higher education automatically qualify for a sickness insurance in the sense of Article 6(1)(c), shall be presumed to satisfy this condition.

3. No threat to public policy, public security or public health (Article 6(1)(d)) Another requirement is that the person is not regarded as being a threat to public policy, public security or public health. A general definition for the terms ‘public policy’ and ‘public security’ does not exist on EU level, but guidelines were developed by the ECJ in its case law.149 For EU citizens and their third-country national family members, these case-law guidelines have been codified in Directive 64/221/EEC150 which was abolished in 2004 by Article 27 et seqq. Free Movement Directive 2004/38/ EC which specify the public order proviso of Article 45(3) and Article 52(1) TFEU. The public order proviso is to be interpreted strictly, as it stipulates an exception from the fundamental principle of free movement.151 Restrictions of national authorities on grounds of public order may therefore only be justified in cases of ‘a genuine and sufficiently serious threat affecting one of the fundamental interests of society’.152 7 Whether these principles may be applied by analogy to the legal status of thirdcountry nationals under this Directive depends on the comparability of the interests affected and the wording and purpose of Article 6.153 In favour of a comparability of interests, it may be argued that the Court has emphasized the need for a uniform and restrictive interpretation used in EU directives and that the Court has interpreted public order clauses in the EU-Turkey Association Treaty in accordance with EU free movement principles.154 On the other hand, the restrictive interpretation of the public order limitations on EU free movement is a manifestation of the special status of Union citizenship applying in part to Turkish nationals; other third-country nationals do not 6

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Hailbronner, Ausla¨nderrecht Kommentar § 2 AufenthG MN 64. Ibid. 149 Inter alia: ECJ, van Duyn, C-41/74, EU:C:1974:133; Royer, C-48/75, EU:C:1976:57; Regina v Bouchereau, C-30/77, EU:C:1977:172; Bachmann, C-204/90, EU:C:1992:35; Roux, C-363/89, EU:C:1991:41; Orfanopoulos and Oliveri, C-482/01, EU:C:2004:262. For a detailed analysis, see SchmidDru¨ner, Der Begriff der o¨ffentlichen Sicherheit und Ordnung im Einwanderungsrecht ausgewa¨hlter EUMitgliedstaaten (Nomos 2007), p. 389 et seqq. 150 Directive 64/221/EEC (OJ 1964 56/850) on the coordination of special measures on grounds of public policy, public security or public health. 151 ECJ, van Duyn, C-41/74, EU:C:1974:133, para. 18. 152 ECJ, Regina v Bouchereau, C-30/77, EU:C:1977:172. 153 See on parallel interpretation of similar terminology of EU law in general, above Hailbronner/Thym Constitutional Framework, MN 18. 154 ECJ, Nazli and Others, C-340/97, EU:C:2000:77, para 56–60; see also Boeles and others, European Migration Law (Intersentia 2009), p. 104–105. 148

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have such special status. Finally, the admission of third-country nationals is part of Title V of the TFEU which includes Article 72 TFEU stating that ‘[t]his Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.’ The exact meaning of this provision is under debate but the difference between this provision and the public order clauses in free movement law is apparent.155 From this, it can be concluded that the interests are not comparable. Also, the adopted wording of Article 6(1)(d) differs considerably from the wording of Article 27 Free Movement Directive 2004/38/EC and the former Directive 64/221/EC156 and as the wording of Article 6 was discussed in the drafting process (see below MN 9), this may be taken as a deliberate discrepancy. In conclusion, the Directive’s public order clause is not to be interpreted in analogy to EU free movement law, but needs to be interpreted autonomously. Recital 14 states that the admission ‘may be refused on duly justified grounds’. This supports the interpretation that unlike restrictions for EU citizens and their family members, restrictions based on Article 6(1)(d) do not require a serious threat affecting one of the fundamental interests of society, but may be already justified in cases of adverse effects on significant public interests. According to the second and fourth sentence of recital 11, ‘a potential threat to public policy or security (…) may exist in cases (…) in which the third-country national belongs or has belonged to an association which supports terrorism, supports or has supported such an association, or has or has had extremist aspirations’. In contrast to Article 27(2) Free Movement Directive 2004/38/EC, a conviction for committing a crime may in itself suffice to qualify a person as being a threat to public policy if the crime is serious, see the second sentence of recital 14. The clause of the original proposal ‘[p]ublic policy or public security grounds shall be based exclusively on the personal conduct of the third-country national concerned’157 was met with criticism in the Council and was deleted.158 Therefore, the non-admission of a third-country national on public security or public policy grounds may also have reasons which are not related to the individual conduct of the person concerned, e. g. the general prevention of crimes of the type the individual concerned has committed. Unlike Article 6(2) Long Term Residents’ Directive 2003/109/EC, this Directive does not exclude economic grounds as reasons for the denial of admission, so that the refusal may possibly be based on such grounds. It is, however, unlikely that there will be situations in which such a denial can be deemed proportionate as the financial capacity to cover the costs of the stay is already ensured by Article 7(1)(b), Article 9(1)(d), Article 10 (b) and Article 11(c). It would, arguably, not conform to the principle of proportionality if every contagious illness was regarded as threat to public health; especially in cases in which the person presumably gets well until the date of entrance to the territory of the Member States. A contagious illness might be regarded as a threat to public health if the endangerment of other persons cannot be excluded with protection measures. During the drafting process, a phrase on documentary evidence to be provided by the applicant in order to prove his/her innocuousness was deleted.159 The deletion does 155 Peers and others (eds), EU Immigration and Asylum Law Volume 2, p. 202 see no link between Article 6 of the Directive and Article 72 TFEU. 156 Directive 64/221/EEC (OJ 1964 56/850) on the coordination of special measures on grounds of public policy, public security or public health). 157 Commission Proposal, COM(2002) 548, p. 26. 158 Council doc. 15143/03, p. 9. 159 Council doc. 5528/04, p. 5.

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not imply that Member States may not ask for such evidence; Article 5 applies to this condition like any other (see above Article 5 MN 5–7). The later deleted phrase was intentionally worded flexible as not to impose requirements (such as presentation of a certificate of good conduct or an extract from the criminal record) in relation to third countries where they may be difficult or even impossible to meet if the documents do not exist.160 This follows from the principle of proportionality and pertains to all documentary evidence.

4. Payment of procedure fees (Article 6(1)(e)) 13

The last requirement is the proof of payment for the application fee according to Article 20. As this condition is not mandatory, Member States are free to decide if they want to impose it. The fee may not, however, create a disproportional barrier to admission.161 Therefore, it is not compatible with EU law to introduce a fee as precondition for the application to a residence permit which is five times higher than a comparable fee for EU citizens, unless the administrative costs for the issuance of the residence permit justifies the required fees.162

III. Facilitated admission (Article 6(2)) 14

Paragraph 2 seeks to facilitate the admission of third-country nationals participating in EU programmes such as ‘Erasmus+’.163 According to the wording of Article 6(2) the Member States are obliged to facilitate admission procedures. This obligation exists independent from the option of the second subparagraph of Article 3(1) not to apply the Directive to school pupils, unremunerated trainees and volunteers. Facilitating the admission procedures means, for instance, to issue residence permits and, where required, visas in good time in order to enable the holder to take part in the activities covered by the EU programmes without delay.164

Article 7 Specific conditions for students 1. In addition to the general conditions stipulated in Article 6, a third-country national who applies to be admitted for the purpose of study shall: (a) have been accepted by an establishment of higher education to follow a course of study; (b) provide the evidence requested by a Member State that during his/her stay he/she will have sufficient resources to cover his/her subsistence, study and return travel costs. Member States shall make public the minimum monthly resources required for the purpose of this provision, without prejudice to individual examination of each case; (c) provide evidence, if the Member State so requires, of sufficient knowledge of the language of the course to be followed by him/her; 160

Commission Proposal, COM(2002) 548, p. 11. ECJ, Sahin, C-242/06, EU:C:2009:554, para 71. 162 Ibid, paras 72 et seqq. 163 Regulation (EU) No 1288/2013 (OJ 2013 L 347/50) Erasmus+ (bringing together the action programmes in the field of lifelong learning (including Erasmus), Youth in Action, Erasmus Mundus, ALFA III, Tempus and Edulink) 164 Commission Proposal, COM(2002) 548, p. 11. 161

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(d) provide evidence, if the Member State so requires, that he/she has paid the fees charged by the establishment. 2. Students who automatically qualify for sickness insurance in respect of all risks normally covered for the nationals of the Member State concerned as a result of enrolment at an establishment shall be presumed to meet the condition of Article 6(1)(c). Article 7(1) lays down specific conditions which students have to fulfil in addition to those provided for by Article 6. The applicant has to be accepted by an establishment of higher education to follow a course of study (for the interpretation of these terms see above Article 2 MN 4, 6, 17). The condition of Article 7(1)(a) is required in most Member States,165 whereas in some Member States, a residence permit can also be issued for the application of admission to an establishment of higher education.166 The second condition set up in Article 7(b) requires students to prove that they have sufficient resources to cover their subsistence, study and return costs throughout their stay. The provision is flexible; no minimum amount is proposed or fixed in the Directive. It is left to the discretion of the Member States to decide on the minimum amount required, in consideration of the resources students normally need in the Member State concerned.167 Article 7(1)(b) implies that the publicly proclaimed minimum amount is not to be automatically applied. The authorities must examine the circumstances in each individual case, taking into account the candidate’s particular situation, e. g. if he/she has access to low-cost university accommodation or resources in kind like accommodation or food that the candidate may receive without charge from family members.168 Recital 13 states that ‘[f]ellowships may be taken into account’ when determining ‘the availability of sufficient resources’. When deciding on the renewal of a student’s residence permit, Member States’ authorities also have to take into account any working income the student is achieving besides his/her study. Fees charged by the educational establishment do not form part of the minimum amount required as these are expressly covered by Article 7(1)(d). Across Member States, the amount of resources varies widely; in 2009 from E 120 (Bulgaria) to E 795 (Netherlands) monthly.169 Also, the type of evidence of sufficient resources acknowledged by the host state varies greatly between Member States. Students might have the option to expose the financial situation of their parents, provide a formal obligation of another person taking over the responsibility for sufficient resources or provide a bank bail, the notification of the granting of maintenance grants from the country of origin or the evidence of a scholarship. The publication obligation under Article 7(1)(b) must be implemented in a way that allows access to the information with a reasonable effort which is questionable if the information is only available in official text not easily accessible or readable for thirdcountry nationals. The publication obligation is part of Member States’ broader duty to inform third-country nationals about the rules applicable to the admission of students, so as to ensure transparency and legal certainty for prospective students and thus encourage them to study in the EU.170 165

IOM/EP, Comparative Study (2008), p. 96. E. g. Germany, see section 16(1a) AufenthG (German Residence Act), BGBl. I, p. 162 (2008) as subsequently amended. 167 Commission Proposal, COM(2002) 548, p. 12. 168 Ibid, p. 12. 169 Commission Report, COM(2011) 587, p. 4. 170 Ibid, p. 3–4. 166

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Part C V Art. 8

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Article 8 Mobility of students 1. Without prejudice to Articles 12(2), 16 and 18(2), a third-country national who has already been admitted as a student and applies to follow in another Member State part of the studies already commenced, or to complement them with a related course of study in another Member State, shall be admitted by the latter Member State within a period that does not hamper the pursuit of the relevant studies, whilst leaving the competent authorities sufficient time to process the application, if he/she: (a) meets the conditions laid down by Articles 6 and 7 in relation to that Member State; and (b) has sent, with his/her application for admission, full documentary evidence of his/her academic record and evidence that the course he/she wishes to follow genuinely complements the one he/she has completed; and (c) participates in a Community or bilateral exchange programme or has been admitted as a student in a Member State for no less than two years. 2. The requirements referred to in paragraph 1(c), shall not apply in the case where the student, in the framework of his/her programme of studies, is obliged to attend a part of his/her courses in an establishment of another Member State. 3. The competent authorities of the first Member State shall, at the request of the competent authorities of the second Member State, provide the appropriate information in relation to the stay of the student in the territory of the first Member State. Content I. General remarks and drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. General remarks and drafting history Article 8 seeks to meet the growing demand for student mobility and therefore aims to facilitate the mobility of third-country nationals within the territory of the EU. In this sense, mobility means admission of a third-country national who has already been admitted to a Member State under this Directive to the territory of another Member Sate. 2 Article 8(1) entitles third-country nationals to a residence permit from the Member State where they want to follow their studies, provided the applicant meets the conditions set up by Article 8.171 The entitlement to admission to the second Member State is subject to the right of Member States to refuse a student’s application on the basis of Article 12(2), 16 and 18(2). 3 The original Commission proposal determining a time limit of 30 days for the issuance of a residence permit by the second Member State172 was, due to the reservations of some Member States concerning administrative difficulties, replaced by a more flexible wording.173 The obligation to issue residence permits ‘within a period 1

171 English: ‘(…) shall be admitted (…)’; German: ‘erhält (…) eine Zulassung’; French: ‘est admis’; Spanish: ‘será admitido’. Peers and others (eds), EU Immigration and Asylum Law Volume 2 (2012), p. 204; Kocharov, EL Rev 33 (2008), p. 913, 918. 172 Commission Proposal, COM(2002) 548, p. 12. 173 Council doc. 5528/04, p. 7.

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that does not hamper the pursuit of the relevant studies, whilst leaving the competent authorities sufficient time to process the application’ leaves a large margin of appreciation to the Member States. As guideline, the 90 days limit of Article 11 of the later approved Blue Card Directive 2009/50/EC may be used.

II. Requirements Article 8 only covers those third-country nationals who have already been admitted to a Member State pursuant to this Directive, but does not apply to people who reside in a Member State on another EU or national legal basis.174 The applicant has to satisfy the conditions for entrance and residence laid down in Article 6 and 7, see Article 8(1)(a). The right to admission pursuant to Article 8(1) is restricted to two types of cases: The first category concerns students who wish to pursue a part of their already commenced studies in another Member State either to finish them there or study there and then return to complete them in the Member State to which they were first admitted; the second category concerns students who have already finished their studies in one Member State and want to complement their studies with a related course of study in another Member State. Hence, Article 8 does not cover students who want to change their subject of studies or branch.175 The second alternative allows a complementation with a related course of study. The relatedness and complementary nature must be proven by an academic or professional connection. Even though in the first sentence of Article 8(1), the text refers to ‘studies already commenced’, it is clear from Article 8(1)(b) that the studies in the first Member State have to be completed before complementing them in another Member State. Finally, the applicant has to participate in an EU or bilateral exchange programme, e. g. ‘Erasmus+’,176 or must have been admitted to the territory of the first Member State for at least two years. Article 8(2) in turn states an exception from this requirement for students who are obliged to attend part of their courses in an establishment of another Member State. The exception applies whenever under the national study programme of the first Member State, the attendance of courses in an establishment abroad is required. Persons who do not fulfil the conditions of Article 8 may apply pursuant to the provisions for first admission of students, i. e. Article 5, 6(1) and 7177 (which in many cases will be easier to fulfil anyway, but depending on the view taken might – unlike Article 8 – not oblige Member States to grant admission, see above Article 5 MN 8–16). From a legal policy point of view, the requirements of Article 8 are rather restrictive. They also do not interact well with EU funding programmes178 and their restrictiveness is at odds with the political goal of the Stockholm Programme to approximate the rights of legally resident third-country nationals to those of EU citizens.179 Several Member States seem to find that the additional requirements of Article 8 are not necessary and, on the basis of more favourable provisions (Article 4(2)), do not require 174

Commission Proposal, COM(2002) 548, p. 12. Ibid, p. 13. 176 Regulation (EU) No 1288/2013 (OJ 2013 L 347/50) Erasmus+. 177 Commission Proposal, COM(2002) 548, p. 13. 178 Commission Impact Assessment, SWD(2013) 77, p. 17–18. 179 European Council (10–11 December 2009), Stockholm Programme, Council doc. 17024/09, OJ 2010 C 115/1, 30; European Council (15–16 October 1999), Tampere Programme, Presidency Conclusions, no. 21; Wiesbrock goes as far as calling free movement of third-country nationals an illusion, see Wiesbrock, EL Rev. 35 (2010), p. 455, 458. 175

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their fulfilment.180 Sweden did not even see the need to implement Article 8 as students could just apply for first admission.181 It is striking that the recast Directive’s mobility provisions will be even more complicated.182

III. Procedure 11

Article 8(1)(b) mandates that the student has to send to the Member State in which he/she wants to continue/complement his/her studies documentary evidence. This provision is to ensure that third-country nationals do not abuse their right of admission by extending their stay in the EU for purposes other than studying.183 Article 8(3) determines that the first Member State has to provide ‘appropriate information’ to the second Member State ‘in relation to the stay’ of the third-country student. Related to this, recital 15 states that Member States may require, in case of doubts concerning the student’s grounds of application, all the evidence necessary to assess their coherence (see above Article 5 MN 5–7).

Article 9 Specific conditions for school pupils 1. Subject to Article 3, a third-country national who applies to be admitted in a pupil exchange scheme shall, in addition to the general conditions stipulated in Article 6: (a) not be below the minimum age nor above the maximum age set by the Member State concerned; (b) provide evidence of acceptance by a secondary education establishment; (c) provides evidence of participation in a recognised pupil exchange scheme programme operated by an organisation recognised for that purpose by the Member State concerned in accordance with its national legislation or administrative practice; (d) provides evidence that the pupil exchange organisation accepts responsibility for him/her throughout his/her period of presence in the territory of the Member State concerned, in particular as regards subsistence, study, healthcare and return travel costs; (e) be accommodated throughout his/her stay by a family meeting the conditions set by the Member State concerned and selected in accordance with the rules of the pupil exchange scheme in which he/she is participating. 2. Member States may confine the admission of school pupils participating in an exchange scheme to nationals of third countries which offer the same possibility for their own nationals. 1

School pupils must fulfil specific requirements in addition to the general conditions of Article 6. First, they have to be within the age limit determined by every Member State. The Commission proposed an age between 16 and 18.184 Second, they have to 180 Commission Report, COM(2011) 587, p. 6: AT, BE, CZ, FR, HU, LT, NL, PT, RO, SI and SE do not apply Article 8 (1)(b) and(c); BG and LV do not apply Article 8 (1) (b); EE and ES do not apply Article 8 (1)(c). 181 Wiesbrock, EL Rev. 35 (2010), p. 455, 466. 182 Article 26D–26E Council doc. 13974/15, p. 61–65. 183 Commission Proposal, COM(2002) 548, p. 13. 184 Ibid, p. 13.

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prove evidence of their acceptance by a secondary education establishment. Whereas the term ‘establishment’ is legally defined by Article 2(e) (see above Article 2 MN 17), the definition of secondary education remains within the national discretion of each Member State. The requirement ‘evidence of acceptance’ is worded identical to the relevant requirement for students and hence, its interpretation may be made use of (see above Article 2 MN 4–5).The third condition is that school pupils must participate in a pupil exchange scheme programme recognised by the Member State concerned and run by an organisation also recognised by the Member State for this purpose. The rules applying to the recognition of programmes and organisations remain within the national competence. Unlike with students and trainees, pupils’ resources are not verified by migration authorities. Instead, the applicant must, as a fourth condition, provide evidence that the organisation running the exchange scheme assumes liability for his/her subsistence, study and health-care costs throughout the complete stay including the return travel costs. Evidence may be provided, for instance, by way of guarantees covering any costs that may be caused by the pupil’s residence.185 Fifth, pupils have to be accommodated by a host family in the Member State concerned. The host family must meet the conditions set up by the host Member State and shall be selected by the organisation conducting the pupil exchange programme. This last condition was considered by the Commission to be a very important one, as it helps to achieve one of the prime objectives of the pupil’s stay which is to get to know the culture and language of the host state.186 According to Article 9(2), Member States may decide to apply the provisions concerning school pupils only to nationals of countries which offer the same possibility for their nationals.

Article 10 Specific conditions for unremunerated trainees Subject to Article 3, a third-country national who applies to be admitted as an unremunerated trainee shall, in addition to the general conditions stipulated in Article 6: (a) have signed a training agreement, approved if need be by the relevant authority in the Member State concerned in accordance with its national legislation or administrative practice, for an unremunerated placement with a public- or private-sector enterprise or vocational training establishment recognised by the Member State in accordance with its national legislation or administrative practice; (b) provide the evidence requested by a Member State that during his/her stay he/she will have sufficient resources to cover his/her subsistence, training and return travel costs. The Member States shall make public the minimum monthly resources required for the purpose of this provision, without prejudice to individual examination of each case; (c) receive, if the Member State so requires, basic language training so as to acquire the knowledge needed for the purposes of the placement. Article 10 lays down specific conditions which unremunerated trainees have to fulfil 1 in addition to the general conditions provided for by Article 6. 185 186

Ibid, p. 13. Ibid, p. 13.

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For the definition of the term ‘unremunerated trainee’ see above Article 2 MN 13–16 and Article 3 MN 13. The first condition refers to the submission of a signed training contract. Due to the explicit wording, a binding offer is not sufficient. The contract must be concluded between the unremunerated trainee and a private or public enterprise or a vocational training establishment recognised by the host state in accordance with its national legislation. If required under national legislation, the contract has to be approved by the relevant authority of the Member State concerned. By examining the contract before approving it, Member States may ensure that unremunerated trainees are not employed in place of proper workers in order to prevent a circumvention of national labour law.187 They may also supervise that all rules and conditions applicable to the relevant activity in their Member State, e. g. requisite qualifications, are satisfied by the unremunerated trainee. 3 Second, the unremunerated trainee has to meet the condition of sufficient resources. This requirement is worded identically to the relevant requirement for students and hence, its interpretation applies (see above Article 7 MN 3–4). Permissible benefits (see for the delimitation of remuneration and permissible benefits Article 2 MN 16) have to be taken into account when examining the availability of sufficient resources. 4 The third condition set up for unremunerated trainees refers to language knowledge; however, it is left to the discretion of each Member State to impose this requirement. Unlike the corresponding criterion for students, it is not necessary that unremunerated trainees already possess sufficient language knowledge. This follows from Article 10(c) authorising Member States to require basic language training. The provision is more flexible than the corresponding one for students as language knowledge is regarded less necessary for vocational training than for studies; therefore it may be sufficient that trainees progress during their placement.188 Due to the vague wording of Article 10, the language training can either be given before the departure in the country of origin or at the beginning of the stay in the host country.189 As the requirement refers to language knowledge ‘needed for the purpose of the placement’, the language training shall be in the language operated in the placement, which is not necessarily the official language of the host state. The question, whether the contracting partner has to provide the required language training or whether this remains in the responsibility of the unremunerated trainee, is not solved by the Directive and the answer is therefore left to national legislation or administrative practice. 2

Article 11 Specific conditions for volunteers Subject to Article 3, a third-country national who applies to be admitted to a voluntary service scheme shall, in addition to the general conditions stipulated in Article 6: (a) not be below the minimum age nor above the maximum age set by the Member State concerned; (b) produce an agreement with the organisation responsible in the Member State concerned for the voluntary service scheme in which he/she is participating, giving a description of tasks, the conditions in which he/she is supervised in the performance of those tasks, his/her working hours, the resources available to 187

Commission Proposal, COM(2002) 548, p. 14. Ibid, p. 14. 189 Ibid, p. 14–15. 188

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cover his travel, subsistence, accommodation costs and pocket money throughout his/her stay and, if appropriate, the training he will receive to help him/her perform his/her service; (c) provide evidence that the organisation responsible for the voluntary service scheme in which he/she is participating has subscribed a third-party insurance policy and accepts full responsibility for him/her throughout his/her stay, in particular as regards his/her subsistence, healthcare and return travel costs; (d) and, if the host Member State specifically requires it, receive a basic introduction to the language, history and political and social structures of that Member State. Article 11 lays down specific conditions which volunteers have to fulfil in addition to the general conditions provided for by Article 6. The first condition refers to the age of the applicant and is drafted in the same way as for school pupils in Article 9(1)(a). The second condition concerns the participation in a voluntary service scheme. According to Article 11(b), the volunteer must present an agreement concluded with the host organisation clearly specifying the volunteer’s tasks and hours of work. Thus, Member States may ensure that voluntary service schemes do not cover activities normally covered by an employment contract.190 The agreement must also specify the management structure within which the volunteer will work and to which he/she can look for help concerning any problems. The host organisation might appoint, for instance, a supervisor to assist the volunteer during his/her stay.191 Additionally, the agreement must mention the resources available to cover the volunteer’s travel, subsistence and accommodation costs; in this respect a precise amount shall be given.192 However, resources do not need to be exclusively provided by the organisation running the voluntary service scheme, but may also be covered by other sources, e. g. housing may be supplied by a volunteer’s family member lawfully residing in the host country.193 The agreement shall also contain information about the training the volunteer will receive in the host country in order to be able to perform his/her service. As a third condition, the volunteer has to provide evidence that the organisation running the scheme has subscribed to a third-party insurance policy, Article 11(c). This insurance policy must cover all activities of the volunteer stipulated by the agreement pursuant to Article 11(b). The volunteer further has to provide evidence that the organisation accepts full responsibility for his/her subsistence, lodging, board, healthcare and return travel costs. Evidence may be given by a guarantee or a formal declaration of obligation.194 Due to the last requirement, no condition as to resources needs to be imposed on the volunteer him-/herself.195 The last condition refers to the cultural education of the volunteer. According to Article 11(d), Member States may require that the organisation arranges a basic introductory course on the language, history and political and social structure of the host Member State. This course may be given either in the country of origin or at the beginning of the volunteer’s stay in the host state.196 The purpose of this optional condition is to ensure that the volunteer derives full benefit from his/her stay and the voluntary service activity proceeds without troubles.197 190

Ibid, p. 15. Ibid. 192 Ibid. 193 Ibid. 194 Ibid. 195 Ibid. 196 Ibid. 197 Ibid. 191

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Part C V Art. 12–16

Immigration

CHAPTER III RESIDENCE PERMITS Article 12 Residence permit issued to students 1. A residence permit shall be issued to the student for a period of at least one year and renewable if the holder continues to meet the conditions of Articles 6 and 7. Where the duration of the course of study is less than one year, the permit shall be valid for the duration of the course. 2. Without prejudice to Article 16, renewal of a residence permit may be refused or the permit may be withdrawn if the holder: (a) does not respect the limits imposed on access to economic activities under Article 17; (b) does not make acceptable progress in his/her studies in accordance with national legislation or administrative practice.

Article 13 Residence permit issued to school pupils A residence permit issued to school pupils shall be issued for a period of no more than one year.

Article 14 Residence permit issued to unremunerated trainees The period of validity of a residence permit issued to unremunerated trainees shall correspond to the duration of the placement or shall be for a maximum of one year. In exceptional cases, it may be renewed, once only and exclusively for such time as is needed to acquire a vocational qualification recognised by a Member State in accordance with its national legislation or administrative practice, provided the holder still meets the conditions laid down in Articles 6 and 10.

Article 15 Residence permit issued to volunteers A residence permit issued to volunteers shall be issued for a period of no more than one year. In exceptional cases, if the duration of the relevant programme is longer than one year, the duration of the validity of the residence permit may correspond to the period concerned.

Article 16 Withdrawal or non-renewal of residence permits 1. Member States may withdraw or refuse to renew a residence permit issued on the basis of this Directive when it has been fraudulently acquired or wherever it 602

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Art. 16

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appears that the holder did not meet or no longer meets the conditions for entry and residence laid down in Article 6 and in whichever of Articles 7 to 11 applies to the relevant category. 2. Member States may withdraw or refuse to renew a residence permit on grounds of public policy, public security or public health. Content I. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Period of validity of residence permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Students (Article 12(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. School pupils (Article 13). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Unremunerated trainees (Article 14). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Volunteers (Article 15) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Renewal, Non-renewal and withdrawal of residence permits . . . . . . . . . . . . . . 1. Students (Article 12). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. School pupils and volunteers (Article 13 and 15). . . . . . . . . . . . . . . . . . . . . . . . . 3. Unremunerated trainees (Article 14). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. General conditions pursuant to Article 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Fraudulent acquirement (Article 16(1)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Loss of satisfaction of the conditions laid down in Article 6–11. . . . c) Grounds of public policy, public security and public health (Article 16(2)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Accessibility of long-term residence status. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 5 6 7 8 9 13 14 16 17 18 19 20

I. General remarks Article 12–16 determine the period of validity, the renewal and withdrawal of 1 residence permits, but not the conditions for first admission (see above Article 5 MN 13).

II. Period of validity of residence permits The period of validity for which Member States have to issue residence permits varies 2 for each of the four categories of persons falling within the Directive’s scope.

1. Students (Article 12(1)) According to Article 12(1), the first residence permit for students shall, in principle, 3 be issued for a period of at least one year. In exceptional cases, in which the course of study is shorter than one year, the period of validity of the residence permit shall not exceed beyond the duration of the course of study. Article 12 is drafted in a flexible manner, enabling Member States to issue residence permits in line with the particular type of study.198 Thus, Member States may also issue a residence permit for more than one year to cover the full duration of the course of study. In most EU Member States residence permits for students are issued for the duration of one year.199 Some Member States grant residence permits for the duration of at least one year and up to two years and few Member States grant a permit for the duration of studies.200

198

Commission Proposal, COM(2002) 548, p. 16. IOM/EP, Comparative Study (2008), p. 96. 200 Ibid, p. 96, 560, 562, 563. 199

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A provisional admission of students dependent on a decision of recognition of a foreign qualification or dependant on the passing of an entrance test is not foreseen in the Directive. A draft provision of the Commission’s proposal containing the possibility of a temporary admission201 was deleted by the Council.202 Therefore, provisional admission fully remains in the discretion of the Member States.

2. School pupils (Article 13) 5

Residence permits for school pupils shall be issued for no more than one year, Article 13. Unlike Article 12(1) concerning students, Article 13 does not state any exception for cases in which pupil exchange schemes last longer than one year, but under the general clause of Article 4(2) entitling Member States to adopt more favourable provisions, Member States may grant a residence permit for a longer duration.

3. Unremunerated trainees (Article 14) 6

As regards to unremunerated trainees, residence permits ‘shall correspond to the duration of the placement or shall be for the maximum time of one year’. Member States may set up a strict time limit of one year or provide more flexible rules, according to which the validity period can be aligned to the duration of placement.

4. Volunteers (Article 15) 7

Residence permits for volunteers shall be issued, in principle, for no more than one year.

III. Renewal, Non-renewal and withdrawal of residence permits 8

The conditions for the (non-)renewal and withdrawal of residence permits are laid down in Article 16. Next to these general conditions, Article 12–15 lay down specific conditions for renewal concerning each category of persons. Depending on the category, renewal might not be possible at all (school pupils and volunteers, Article 13 and 15), be possible in exceptional cases (unremunerated trainees, Article 14) or be the normal case scenario (students, Article 12).

1. Students (Article 12) Residence permits for students shall be ‘renewable if the holder continues to meet the conditions of Article 6 and 7’, Article 12(1). After the ECJ denied the existence of discretion over first admission decisions (see above Article 5 MN 8–16), it may be assumed that the same is true for the renewal of residence permits; hence Member States are not only obliged to issue residence permits which are renewable but also to renew them if the conditions are fulfilled. 10 Article 12(2) determines specific grounds – aside from the grounds of Article 16 – on which a student’s residence permit may be withdrawn or on which its renewal may be denied: The residence permit may be withdrawn or not renewed either in cases in which the student ‘does not respect the limits imposed on access to economic activities under Article 17’ or in cases in which the student ‘does not make acceptable progress in his/her studies’. 9

201 202

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Article 11(1) Commission Proposal, COM(2002) 548. Council doc. 7238/04, p. 13.

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Article 12(2)(a) entitles Member States to sanction the violation of the limits 11 imposed on access to economic activity under Article 17 by not renewing or even withdrawing the student’s residence permit. This is to enable Member States to prevent abuse of the student status by third-country nationals who work instead of studying.203 The second ground for the termination of a student’s residence provided for by 12 Article 12(2)(b) refers to academic performance. The term ‘acceptable progress’ in his/ her studies in accordance with national legislation or administrative practice leaves wide discretion to the Member States. However, if an educational establishment issues a statement concerning the academic progress of the student, this opinion must at least be considered by the migration authority.204 The migration authority may require the academic record for its examination and take into account the usual study period at the educational establishment concerned as well as the individual circumstances of the student.205 The setting of a time limit for studies could be a legitimate way to assess the progress of study even though a rigorous time limit is not compatible with the wording of Article 12(2)(b); the term ‘acceptable progress’ implicitly requires an assessment of each case in consideration of the individual circumstances of the third-country national concerned.206 The migration authority, therefore, has to predict whether the studies may be expected to be accomplished within a reasonable time in consideration of the previous performance. In general, individual circumstances may not, arguably, justify the continuation of residence if the usual duration of study is considerably exceeded and there is no indication of the studies being accomplished within conceivable time.207

2. School pupils and volunteers (Article 13 and 15) With regards to residence permits issued for the purpose of school exchange and 13 voluntary service, Article 13 and 15 do not contain any provisions concerning their renewal. According to the Commission’s proposal, the residence permits should be issued ‘only (…) non-renewable’.208 This was criticised for being too restrictive as it could have undermined the possibility of a more favourable provision in accordance with the national legislation; therefore, it was deleted.209 Resulting from this drafting history, it is left to the Member States’ discretion to adopt or maintain legislation or administrative practice which declares the residence permits of school pupils and volunteers renewable and sets up conditions and limits for renewal.

3. Unremunerated trainees (Article 14) Residence permits issued to unremunerated trainees are renewable only once on an 14 exceptional basis if this is necessary to enable the trainee to complete his/her vocational training. In general, the duration of the placement will already be determined by the training contract subject to Article 10(1). An exceptional renewal may therefore be of importance especially in Member States which only issue a residence permit for one year irrespective of the actual duration of the placement determined by the training contract. 203

Commission Proposal, COM(2002) 548, p. 16. See the judgment of the Dutch ‘Rechtsbank’s Gravenhage’ of 21 April 2009 (AWB 08/14417, 08/ 14418), consideration no. 6. 205 Hailbronner, Ausla ¨ nderrecht Kommentar, § 52 AufenthG MN 48 et seqq. 206 The Dutch ‘Rechtsbank’s Gravenhage’ declared the rigour time limit of the Dutch national legislation to be inconsistent with Article 12(2)(b) as its wording requires individual assessment of each case. See Judgment of the Rechtsbank’s Gravenhage of 16 April 2009 (AWB 08/26563, JV 2009/249). 207 Hailbronner, Ausla ¨ nderrecht Kommentar § 52 AufenthG MN 49. 208 Article 12 and Article 14 Commission Proposal, COM(2002) 548. 209 Council doc. 15143/03, p. 17. 204

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The last phrase of the second sentence of Article 14 refers to the conditions of Article 6 and 10 and is a mere repetition of Article 16(1) (see below MN 18).

4. General conditions pursuant to Article 16 16

The general grounds on which the withdrawal or non-renewal of a residence permit may be based are laid down in Article 16. Whereas a non-renewal only affects the prospective residence, the withdrawal of a residence permit may impact the residence status with retroactive effect or with effect from the time of decision subject to national legislation. Article 16 does not provide for an obligation to withdraw or refuse to renew nor does it state which instrument is to be used. The principles of proportionality, protection of legitimate trust as well as the rule of law will determine the administrative decision-making.

17

a) Fraudulent acquirement (Article 16(1)). A residence permit may be withdrawn or its renewal may be refused if it was fraudulently acquired. In most Member States, a fraudulent acquisition is assumed if the applicant used false documents or provided false or incomplete information to national migration authorities.210 In terms of proportionality, not every usage of false or incomplete information may justify the termination of residence. Migration authorities have to assess the concrete situation and take into account the individual circumstances, e. g. whether the false/incomplete information was provided on purpose or accidentally, and whether the false information was of marginal importance. With regards to mobile students (Article 8), the second Member State may refuse to renew or withdraw a residence permit also in cases in which the fraudulent acquisition occurred only in the first Member State since the student acquired the residence permit against the second Member State based on the first Member State’s permit.

18

b) Loss of satisfaction of the conditions laid down in Article 6–11. A Member State may withdraw or not renew a residence permit, if it appears that the holder does not meet or does no longer meet the conditions for admission laid down in Article 6 and the relevant provision of Articles 7–10. Concerning sufficient resources, the ECJ stated in Grzelczyk that the withdrawal or non-renewal of an EU residence permit may not be the ‘automatic consequence of a student who is a national of another Member State having recourse to the host Member State’s social assistance system.’211 This statement is not applicable to third-country nationals. The argumentation in Grzelczyk was inter alia based on recital 6 Directive 93/96/EEC212 pursuant to which beneficiaries of the right of free movement for students must not become an unreasonable burden on the public finances of the host Member State.213 The Students Directive 2004/114/EC does not, however, include any similar provision. Whereas EU citizens can claim maintenance grants as of their status as EU citizens and the principles of free movement and non-discrimination,214 third-country nationals cannot claim any access to social benefits. Therefore, the lack of sufficient recourses may generally be a ground not to renew a residence permit. However, this does not exclude that in exceptional cases a non-renewal may violate the EU principle of proportionality.

210

IOM/EP, Comparative Study (2008), p. 473 et seqq. ECJ, Grzelczyk, C-184/99, EU:C:2001:458, paras 42 and 43. 212 Council Directive 93/96/EEC (OJ 1993 L 317/59) on the right of residence for students (now repealed by the Free Movement Directive 2004/38/EC). 213 ECJ, Grzelczyk, C-184/99, EU:C:2001:458, para 44. 214 E. g. ECJ, Morgan, C-11/06, EU:C:2007:626; Fo ¨ rster, C-158/07, EU:C:2008:630. 211

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c) Grounds of public policy, public security and public health (Article 16(2)). For 19 the general interpretation of the terms ‘public policy, public security and public health’, see above Article 6 MN 6–12. Specifically concerning the withdrawal or non-renewal of residence permits, it is important to note again that the public order proviso in the sense of this Directive covers only cases in which significant public interests of a Member State are adversely affected (see above Article 6 MN 8). This is also supported by recital 14 which indicates that the notion of public policy may cover a conviction for committing a serious crime. It follows that not every violation of the national law of the host Member State justifies the withdrawal or non-renewal of residence permits. The violation of internal university rules arguably may not lead to a withdrawal or nonrenewal of a residence permit if the university itself does not exclude the student; if the university does exclude or not re-enrol a student, a recourse to Article 16(2) is not necessary since the non-renewal or withdrawal can already be based on Article 16(1) with Article 7(1)(a). The infringement of civil law, e. g. the violation of obligations resulting from a training agreement in the sense of Article 10(a), does not justify the withdrawal or non-renewal of a residence permit as long as no public interests are affected. However, such violations may lead to a termination of the contract and therefore to the loss of meeting the residence conditions.

IV. Accessibility of long-term residence status By its Article 3(2)(a), the Long Term Residents’ Directive 2003/109/EC does not 20 apply to students and trainees. By point (e), it does not apply to persons who reside solely on temporary grounds such as au pairs or in cases where their residence permit has been formally limited.215 If – contrary to the original purpose of the Directive but according to practice and declared purpose of the recast proposal (see above Article 1 MN 3–4) – persons governed by this Directive switch to a different status, especially starting an employment career after finishing their educational programme, they may well acquire a status qualifying for long term residents status. Then, it is to be determined if their time under this Directive counts towards their five year preresidency requirement under Article 4 Long Term Residents’ Directive 2003/109/EC. For students, trainees (second subparagraph of Article 4(2)) and au pairs (first subparagraph of Article 4(2)), this has been explicitly regulated. The other statuses under this Directive may well be interpreted to fall under Article 3(2)(e) and hence under the first subparagraph of Article 4(2) Long Term Residents’ Directive 2003/109/EC.216

CHAPTER IV TREATMENT OF THE THIRD-COUNTRY NATIONALS CONCERNED Article 17 Economic activities by students 1. Outside their study time and subject to the rules and conditions applicable to the relevant activity in the host Member State, students shall be entitled to be employed 215 See above Thym, Long Term Residents Directive 2003/109/EC, Article 3 MN 15 et seqq.; ECJ, Singh, C-502/10, EU:C:2012:636. 216 See above Thym, Long Term Residents Directive 2003/109/EC, Article 4 MN 10t seq.; ECJ, Singh, C502/10, EU:C:2012:636.

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and may be entitled to exercise self-employed economic activity. The situation of the labour market in the host Member State may be taken into account. Where necessary, Member States shall grant students and/or employers prior authorisation in accordance with national legislation. 2. Each Member State shall determine the maximum number of hours per week or days or months per year allowed for such an activity, which shall not be less than 10 hours per week, or the equivalent in days or months per year. 3. Access to economic activities for the first year of residence may be restricted by the host Member State. 4. Member States may require students to report, in advance or otherwise, to an authority designated by the Member State concerned, that they are engaging in an economic activity. Their employers may also be subject to a reporting obligation, in advance or otherwise. Content I. General remarks and drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Scope of right to economic activities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Labour market restrictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Labour time restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Requisite qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. The first year. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Formalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Work permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Reporting System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Students as workers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 6 7 13 14 15 16 16 17 18

I. General remarks and drafting history Chapter IV was originally named ‘Rights of third-country nationals’ and included multiple rights. 2 The first right, provided for by the first sentence of draft Article 17(1) referred to the right of residence, which only confirmed the entitlement resulting from a residence permit; it was considered as being superfluous and deleted.217 The second right referred to visa facilitation and was moved to the recitals.218 3 Draft Article 18 (Article 17 of the final Directive), provided a right to work for students as well as for unremunerated trainees. Member States suggested that access to the labour market for both, students and unremunerated trainees, should remain optional, justifying this with potentially adverse implications on the labour market219 and – only concerning self-employed activities – by arguing that self-employed activities were by definition full-time and could distract students from their studies.220 In the end, the right to work was abolished for unremunerated trainees altogether, but maintained at least for students,221 even though it is now mandatory only for employment, whereas it is left to the discretion of the Member States concerning self-employment. Article 17 has the objective to give students the possibility to safeguard their subsistence for the purpose of successfully completing their studies. 1

217

Council Council 219 Council 220 Council 221 Ibid. 218

608

doc. doc. doc. doc.

5528/04, p. 13; Council doc. 6681/04, p. 14. 7463/04, p. 11; Council doc. 7589/04. 15143/03, p. 21. 15143/03, p. 21.

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The Directive does not distinguish if the students’ economic activity forms an 4 obligatory part of the study programme (especially paid internships) or not. As a national regulation of such economic activity which is more liberal than Article 17 would firm as a more favourable provision (Article 4(2)), this does not pose a problem. The Single Permit Directive 2011/98/EU grants equality rights which – depending 5 on the individual situation – may be applicable to persons under this Directive (see Article 3 and Article 12 Single Permit Directive 2011/98/EU). The recast Directive will extend this applicability.222

II. Scope of right to economic activities Third-country students’ right to work is limited in several respects.

6

1. Labour market restrictions The entitlement to take up an employed activity is inter alia limited by the second 7 sentence of Article 17(1) which declares that Member States may take into account the situation of their labour market. The question under what conditions States may rely upon this clause was raised before the ECJ in Sommer.223 The Court argued that only after exhausting the possibilities provided for in 8 Article 17(2) can the host state rely on the second sentence of the first subparagraph of Article 17(1).224 As well, the second sentence of recital 18 serves as a means of interpretation225 stating 9 that ‘[t]he principle of access for students to the labour market under the conditions set out in this Directive should be a general rule; however, in exceptional circumstances Member States should be able to take into account the situation of their national labour markets.’226 The AG in Sommer gave examples for situations in which he finds such exceptional circumstances to be present: ‘for example, where a sector of the labour market or a region of the host Member State is in difficulty or in the case of exceptional deterioration in the employment situation at the national level. In other words, a situation may be described as exceptional in at least three cases. First, there may be a regional problem where the rate of unemployment in a region is significantly higher than the national average. Secondly, the exceptional situation may also be connected with a sectorial imbalance where a particular sector of the labour market encounters serious difficulties. Thirdly, the employment situation at the national level may be exceptionally bad. The present deterioration in the employment situation in Spain may illustrate this hypothesis.’227

According to the ECJ, the presence of exceptional circumstances may not be decided 10 by Member States’ legislative powers, but instead, Member States must attribute the factual determination whether exceptional circumstances are present, onto the administrative authority which decides on the grant/denial of each individual work permit.228 222

Article 21 Council doc. 13974/15 pp. 47–48. ECJ, Sommer, C-15/11, EU:C:2012:371; an even more comprehensive interpretation could be hoped for from the proceedings in ECJ, Commission v Austria, C-568/10, EU:C:2011:763 but Austria amended its legislation before the AG’s opinion or a judgment could be delivered (see AG Ja¨a¨skinen, ECJ, Sommer, C15/11, EU:C:2012:116, footnote 20); for an analysis of the Austrian legislation at the time, see Muzak, ‘Ein Fremdenrecht fu¨r Wissenschaftler und Auslandsstudierende?’, Zeitschrift fu¨r Hochschulrecht (2007), p. 67. 224 ECJ, Sommer, C-15/11, EU:C:2012:371, para 42. 225 Ibid, para 42. 226 Emphasis added. 227 AG Ja ¨a¨skinen, ECJ, Sommer, C-15/11, EU:C:2012:116, para 58 and footnote 19. 228 ECJ, Sommer, C-15/11, EU:C:2012:371, para 43. 223

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Finally, any measures relating to restricted access to the labour market have to be justified and proportionate with regard to the aim being pursued,229 this being true for any national implementing measure of EU law230. 12 Another issue is which kinds of measures are permissible in account of a Member State’s labour market situation. Article 17(1) does not contain a specific reference to the preference of EU citizens as other Directives do.231 The lack of a specific regulation of this issue indicates that a general preference of EU citizens over third-country students is not permitted no matter how exceptional the circumstances. Another, although somewhat unlikely, measure is a total ban on economic activities by third-country students. Against the permissibility of such a total ban it can be argued inter alia that in such a scenario the wording ‘shall’ as regards students’ access to employment would be ignored and the purpose of the Directive undermined (see recital 7 and 18).232 It should be noted that Article 79(5) TFEU cannot be used as a basis for national restrictions on third-country students’ labour market access because it speaks of persons who come ‘in order to seek work’ which only entails economic migration.233 11

2. Labour time restrictions 13

Article 17(1) limits the labour time, intending to preserve the prime objective of the student’s stay, which is to study. The drafting history argues for an interpretation of ‘outside their study time’ to be outside of class hours.234 Also, particularly, in situations in which an economic activity during the semester does not intervene with studies, it is questionable whether a limitation to semester breaks would be proportionate given the purpose of Article 17.

3. Requisite qualifications 14

The economic activity of students is ‘subject to the rules and conditions applicable to the relevant activity in the host Member State’. This covers all rules generally applicable to the taking up of an employment, in particular requisite qualifications (e. g. diplomas, certificates), professional licences and technical requirements.

4. The first year 15

Article 17(3) entitles Member States to restrict students’ right to work in the first year of their stay. It is drafted in a similar way as comparable provisions of other Directives concerning third-country nationals.235 The provision’s purpose is to exclude uncontrolled labour immigration under the pretext of studies.236 Additionally, students are to be encouraged to concentrate on their studies as the first year of residence can be a difficult transition year.237 229

Ibid, para 42. AG Ja¨a¨skinen, ECJ, Sommer, C-15/11, EU:C:2012:116, para 68; ECJ, Painer, C-145/10, EU:C:2013:138, para 105–106 and cases cited there. 231 E. g. Article 15(2) Asylum Reception Conditions Directive 2013/32/EU; Article 14(3) Long Term Residents’ Directive 2003/109/EC. 232 Peers and others (eds), EU Immigration and Asylum Law Volume 2, p. 205. 233 See also above Thym, Part C I, MN 26. 234 Commission Proposal, COM(2002) 548, p. 18, 31. 235 E. g. Article 14(2) Family Reunification Directive 2003/86/EC; Article 21(2) Long Term Residents’ Directive 2003/109/EC. 236 Commission Proposal, COM(2002) 548, p. 18; AG Ja ¨a¨skinen, ECJ, Sommer, C-15/11, EU:C:2012:116, para 60. 237 Commission Proposal, COM(2002) 548, p. 18. 230

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III. Formalities 1. Work permit The Commission draft provided the right to work without the previous grant of a 16 work permit. The Council’s working group amended Article 17(1) allowing Member States to require students to have a work permit in order to work but obliging them to issue it as students are entitled to take up an employed activity. In this way, the Directive leaves room for implementation to fit into the existing national system and for Member States’ permissible labour market restrictions (see above MN 7–12) but ensures that students will be granted the formalities necessary for exercising their right to work.

2. Reporting System The reporting system provided for by Article 17(4) intends to facilitate verification of 17 students’ compliance with the general requisite requirements, such as specific qualifications, or the limits of their working hours. Therefore, Member States may require them to report their employment to an authority competent for this purpose. The Directive does not regulate whether Member States should impose the declaration before or after taking up work.238 Member States have the possibility to require the same declaration of students’ employers. In Member States where the obtaining of a work permit is obligatory, these formalities may already be satisfied in the course of the issuance of the work permit. The introduction of a reporting system and of work permits is optional in order to avoid administrative burdens in Member States which do not consider these formalities to be necessary.239

IV. Students as workers Students who work will usually fulfil the definition of worker in the sense of 18 Article 45 TFEU (of course without giving them any kind of free movement rights as they are not EU citizens). This will not end their status as a student except if they are considered workers within the meaning of Article 3(2)(e) (see above Article 3 MN 11– 15). They might also fulfil the conditions of Article 6(1) Decision 1/80240 although this is more contentious, first concerning general doctrinal ideas (see above Article 4 MN 7) and second concerning the fulfilment of the conditions laid down in Article 6(1) Decision 1/80.241

238

Ibid, p. 18. Ibid. 240 EEC-Turkey Association Council Decision No 1/80 of 19 September 1980, on the development of the association between the EC and Turkey, which has never been published in the Official Journal. 241 ECJ, Payir and Others, C-294/06, EU:C:2008:36; Peers, Journal of Immigration Asylum and Nationality Law 23 (2009), 197; Peers, EL Rev. 32 (2009), p. 628; Welte, Zeitschrift fu¨r Ausla¨nderrecht 2010, 53; Auer, Zeitschrift fu¨r Ausla¨nderrecht 2008, 223. 239

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Part C V Art. 18–20

Immigration

CHAPTER V PROCEDURE AND TRANSPARENCY Article 18 Procedural guarantees and transparency 1. A decision on an application to obtain or renew a residence permit shall be adopted, and the applicant shall be notified of it, within a period that does not hamper the pursuit of the relevant studies, whilst leaving the competent authorities sufficient time to process the application. 2. If the information supplied in support of the application is inadequate, processing of the application may be suspended and the competent authorities shall inform the applicant of any further information they need. 3. Any decision rejecting an application for a residence permit shall be notified to the third-country national concerned in accordance with the notification procedures provided for under the relevant national legislation. The notification shall specify the possible redress procedures available and the time limit for taking action. 4. Where an application is rejected or a residence permit issued in accordance with this Directive is withdrawn, the person concerned shall have the right to mount a legal challenge before the authorities of the Member State concerned.

Article 19 Fast-track procedure for issuing residence permits or visas to students and school pupils An agreement on the establishment of a fast-track admission procedure allowing residence permits or visas to be issued in the name of the third-country national concerned may be concluded between the authority of a Member State with responsibility for the entry and residence of students or school pupils who are third-country nationals and an establishment of higher education or an organisation operating pupil exchange schemes which has been recognised for this purpose by the Member State concerned in accordance with its national legislation or administrative practice.

Article 20 Fees Member States may require applicants to pay fees for the processing of applications in accordance with this Directive. Content I. General remarks and drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Applicability of the procedural guarantees to the issuance of visas . . . 2. Length of procedure (Article 18(1) and (2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Fast-track procedure for students and school pupils (Article 19). . . . . . 4. Notification of applicants (Article 18(2) and (3)) . . . . . . . . . . . . . . . . . . . . . . . . 5. Fees (Article 20) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Appeals (Article 18(4)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Students Directive 2004/114/EC

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I. General remarks and drafting history The original list of procedural rights of the Commission’s proposal was both 1 shortened and weakened. First, Article 23 of the Commission’s proposal, stating an obligation with regard to the dissemination of information on the possibilities for thirdcountry students in the EU,242 was moved to recital 22. Second, Article 19 of the Commission’s proposal which provided the possibility for third-country nationals to submit applications before first entering the territory of a Member State as well as locally when already in the Member State concerned,243 was deleted. Hence, it is left to Member States’ national legislation to determine the way of application.

II. Procedure 1. Applicability of the procedural guarantees to the issuance of visas From the wording of Article 18, it seems rather clear that its procedural guarantees 2 are applicable only to the issuance of residence permits but not to visas, especially because in contrast, Article 19 specifically contains both terms and Article 5–11 speak of ‘admission’ (see for the wording in Article 5–11 above Article 5 MN 2–4). On the other hand, the procedural guarantees of the recast proposal (Article 3(r) together with Article 29) are applicable again also to visas244 which was not changed throughout the negotiations.245 Also, if procedural guarantees applied only to residence permits, those Member States who were permitted by Article 23 to keep issuing long stay visas instead of residence permits would not have had to observe the procedural guarantees for that time at all; secondly, those Member States who issue visas to enter the territory and only once the applicant has entered the territory, issue the residence permit, would be able to completely circumvent the procedural guarantees by not applying them to the issuance of visas.246 Both situations undercut the purpose of Article 18 and sabotage its effet utile. In conclusion, the procedural guarantees of Article 18 must be interpreted to be applicable also to the issuance of visas.247

2. Length of procedure (Article 18(1) and (2)) Concerning the maximum length of procedure for the issuance and renewal of 3 residence permits/visas, Member States opposed a strict time limit arguing that a first-entry case might entail difficulties requiring more flexibility with regard to deadlines.248 Therefore, draft Article 18(1) was amended. Due to its now very flexible formulation, the actual procedure length varies considerably in the different Member States.

242

Commission Proposal, COM(2002) 548, p. 32. Council doc. 7463/04, p. 13. 244 Commission Recast Proposal, COM(2013) 151, p. 34, 55–56. 245 Council doc. 13974/15, pp. 26, 66, 67. 246 This is apparently happening, see Commission Report, COM(2011) 587, p. 9. 247 The Commission Report, COM(2011) 587, p. 8 states that ‘[t]he Directive applies to the whole process of admitting third-country national students. Its ‘provisions on procedural guarantees and transparency therefore also apply to long-term national visas (if they are required), since a visa allows a person to enter the Member State concerned and the prospective student must therefore apply for one when seeking to obtain a residence permit.’ 248 Council doc. 16117/03, p. 21. 243

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3. Fast-track procedure for students and school pupils (Article 19) 4

Article 19 concerns fast-track procedures for the facilitation of student and pupil admission. The idea is that applications will be submitted by educational establishments or pupil exchange organisations in the name of the student or pupil249 and thus migration authorities may examine applications more quickly and so speed up the admission process.250 Article 19 provides the possibility of agreements establishing fast-track procedures concluded between the competent national migration authority and establishments of higher education and/or organisations operating pupil exchange schemes in the host country.

4. Notification of applicants (Article 18(2) and (3)) With regard to transparency and efficiency of procedures, Article 18(2) and (3) impose obligations on the Member States concerning the notification of applicants. Article 18(2) determines that in cases in which the information submitted with the application is inadequate, the procedure may be abated and the applicant is to be notified of the missing information. Thus, the applicant has the possibility to provide the required information instead of being refused and having to initiate a new proceeding. 6 According to Article 18(3), any decision rejecting an application shall be notified to the applicant in accordance with national legislation. The applicant shall further be informed of the possible redress procedures and the time limit for the initiation of such a procedure. It is questionable whether the French provision, pursuant to which a rejection is feigned if the migration authority does not adopt a decision within four months,251 is compatible with Article 18(3). A clause providing that reasons should be given for any decision rejecting an application was – due to the concerns of the Member States – deleted.252 The Commission Impact Assessment criticises this as possibly infringing the right to an effective remedy enjoyed under Article 47 CFR, as the absence of clear criteria in administrative decisions may render the effective exercise of this right more difficult.253 5

5. Fees (Article 20) 7

Article 20 refers to fees Member States may charge applicants for the processing of applications. The Commission proposed that fees should be set up to a maximum amount by each Member State depending on the actual administrative costs incurred in handling applications.254 The Commission Impact Assessment points out that the ECJ’s jurisprudence clarifies that fees may not be disproportionately high.255

III. Appeals (Article 18(4)) 8

While the Commission proposal stated an individual right to appeal to the courts of the Member State concerned, the adopted text only speaks of the right ‘to mount a legal 249

Commission Proposal, COM(2002) 548, p. 19. Ibid, p. 19. 251 IOM/EP, Comparative Study (2008), p. 559. 252 Council doc. 5528/04, p. 16. 253 Commission Impact Assessment, SWD(2013) 77, p. 19. 254 Commission Proposal, COM(2002) 548, p. 20. 255 Commission Impact Assessment, SWD(2013) 77, p. 19 referring to ECJ, Commission v Netherlands, C-508/10, EU:C:2012:243 regarding the Long Term Residents’ Directive 2003/109/EC; see also ECJ, Sahin, C-242/06, EU:C:2009:554, para 71 et seqq. 250

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Students Directive 2004/114/EC

Part C V

challenge before the authorities of the Member State concerned’.256 The change of wording might be taken to mean that the right to a legal challenge does not necessarily imply a right to judicial remedy provided that there is an administrative authority in charge with an objective and independent examination of a challenge. However, whether the exclusion of a judicial remedy by national law is in accordance with Article 47 CFR and general principles of EU law is questionable: A rejection of an application, which violates individual rights granted under the Directive, must be open to judicial challenge under Article 47 CFR. The same conclusion must be drawn with respect to the jurisprudence of the ECJ, according to which EU law is based on the general principle of effective judicial protection which requires that national tribunals must be able to grant effective protection against a potential violation of individual rights granted by EU law.257 The Council amended the original wording ‘legal challenge in the Member State’ to ‘legal challenge before the authorities of the Member States concerned’; hence, the appeal might also take place outside the Member State concerned.258

CHAPTER VI FINAL PROVISIONS Article 21 Reporting Periodically, and for the first time by 12 January 2010, the Commission shall report to the European Parliament and the Council on the application of this Directive in the Member States and propose amendments if appropriate.

Article 22 Transposition Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 12 January 2007. They shall forthwith inform the Commission thereof. When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

Article 23 Transitional provision By way of derogation from the provisions set out in Chapter III and for a period of up to two years after the date set out in Article 22, Member States are not obliged to issue permits in accordance with this Directive in the form of a residence permit.

256

See on judicial review also above Hailbronner/Thym, Part A, MN 37. ECJ, Factortame, C-213/89, EU:C:1990:257. 258 Council doc. 5528/04, p. 16; emphases added. 257

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Article 24 Time limits Without prejudice to the second subparagraph of Article 4(2) of Directive 2003/ 109/EC, Member States shall not be obliged to take into account the time during which the student, exchange pupil, unremunerated trainee or volunteer has resided as such in their territory for the purpose of granting further rights under national law to the third-country nationals concerned.

Article 25 Entry into force This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 26 Addressees This Directive is addressed to the Member States in accordance with the Treaty establishing the European Community. Articles 21–26 contain the final provisions. Of importance are in particular Article 23 and 24. Draft Article 24 (non-discrimination) was moved to recital 5 without being changed in substance. 2 The territorial scope of application of the Directive includes 25 out of the 28 Member States (the UK, Ireland and Denmark opted out, in accordance with protocols 4 and 5 annexed to TEU and TEC). The Directive entered into force on 12 January 2005 (Article 25). Under Article 22, the Member States were to transpose the Directive by 12 January 2007 which was not accomplished by 14 Member States in time; by fall 2011 this was remedied.259 According to the Commission’s Explanatory Memorandum, ‘Member States must forthwith inform the Commission of all changes to their legislation, regulations and administrative practices and insert in them a reference to this Directive.’260 According to Article 21, a report of the Commission to the European Parliament and the Council on the application of the Directive in the Member States and – if appropriate – a proposal of amendments was expected by 12 January 2010. The report was finally delivered on 28 September 2011, the proposal for amendments on 25 March 2013. 3 Article 23 and 24 were newly introduced into the Directive by the Council in the course of a compromise concerning the maintenance of the term ‘residence permit’ (see above Article 2 MN 20–21). 1

259 260

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Commission Report, COM(2011) 587, p. 2. Commission Proposal, COM(2002) 548, p. 21.

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VI. Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research Official Journal L 289, 03.11.2005, p. 15–22 Selected Bibliography: ICMPD, Implementation and Impact of the Researchers Directive (2012); Kluth, ‘Der Aufenthalt von Forschern nach § 20 AufenthG’, Zeitschrift fu¨r Ausla¨nderrecht 2008, p. 234; Kocharov, ‘What lntra-Community mobility for third-country workers?’, EL Rev 33 (2008), p. 913; Peers and others (eds), EU Immigration and Asylum Law; Volume 2: EU Immigration Law, 2nd edn (Martinus Nijhoff, 2012); Peers, More research is needed: the EU’s attempt to attract more non-EU researchers and students (EU Law Analysis, 23 January 2015) available at: http://eulawanalysis.blogspot.de/2015/01/moreresearch-is-needed-eus-attempt-to.html; Wiesbrock, ‘Free Movement of Third-Country Nationals in the European Union: The Illusion of lnclusion’, EL Rev. 35 (2010), p. 455; Wiesbrock, Legal Migration to the European Union (Immigration and Asylum Law and Policy in Europe) (Martinus Nijhoff, 2010)

THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 63(3)(a) and (4) thereof, Having regard to the proposal from the Commission, Having regard to the opinion of the European Parliament(1), Having regard to the opinion of the European Economic and Social Committee(2), Having regard to the opinion of the Committee of the Regions(3) Whereas: (1) With a view to consolidating and giving structure to European research policy, the Commission considered it necessary in January 2000 to establish the European Research Area as the lynchpin of the Community’s future action in this field. (2) Endorsing the European Research Area, the Lisbon European Council in March 2000 set the Community the objective of becoming the most competitive and dynamic knowledge-based economy in the world by 2010. (3) The globalisation of the economy calls for greater mobility of researchers, something which was recognised by the sixth framework programme of the European Community(4), when it opened up its programmes further to researchers from outside the European Union. (4) The number of researchers which the Community will need by 2010 to meet the target set by the Barcelona European Council in March 2002 of 3 % of GDP invested in research is estimated at 700 000. This target is to be met through a series of interlocking measures, such as making scientific careers more attractive to young people, promoting women’s involvement in scientific research, extending the opportunities for training and mobility in research, improving career prospects for research(1)

Opinion of 12 April 2005 (not yet published in the Official Journal). OJ C 120, 20.5.2005, p. 60. (3) OJ C 71, 22.3.2005, p. 6. (4) Decision No 1513/2002/EC of the European Parliament and of the Council of 27 June 2002 concerning the sixth framework programme of the European Community for research, technological development and demonstration activities, contributing to the creation of the European Research Area and to innovation (2002 to 2006) (OJ L 232, 29.8.2002, p. 1). Decision amended by Decision No 786/ 2004/EC (OJ L 138, 30.4.2004, p. 7). (2)

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ers in the Community and opening up the Community to third-country nationals who might be admitted for the purposes of research. (5) This Directive is intended to contribute to achieving these goals by fostering the admission and mobility for research purposes of third-country nationals for stays of more than three months, in order to make the Community more attractive to researchers from around the world and to boost its position as an international centre for research. (6) Implementation of this Directive should not encourage a brain drain from emerging or developing countries. Back-up measures to support researchers’ reintegration into their countries of origin as well as the movement of researchers should be taken in partnership with the countries of origin with a view to establishing a comprehensive migration policy. (7) For the achievement of the objectives of the Lisbon process it is also important to foster the mobility within the Union of researchers who are EU citizens, and in particular researchers from the Member States which acceded in 2004, for the purpose of carrying out scientific research. (8) Given the openness imposed by changes in the world economy and the likely requirements to meet the 3 % of GDP target for investment in research, third-country researchers potentially eligible under this Directive should be defined broadly in accordance with their qualifications and the research project which they intend to carry out. (9) As the effort to be made to achieve the said 3 % target largely concerns the private sector, which must therefore recruit more researchers in the years to come, the research organisations potentially eligible under this Directive belong to both the public and private sectors. (10) Each Member State should ensure that the most comprehensive information possible, regularly kept up to date, is made publicly available, via the Internet in particular, on the research organisations, approved under this Directive, with which researchers could conclude a hosting agreement, and on the conditions and procedures for entry and residence on its territory for the purposes of carrying out research, as adopted under this Directive. (11) It is appropriate to facilitate the admission of researchers by establishing an admission procedure which does not depend on their legal relationship with the host research organisation and by no longer requiring a work permit in addition to a residence permit. Member States could apply similar rules for third-country nationals requesting admission for the purposes of teaching in a higher education establishment in accordance with national legislation or administrative practice, in the context of a research project. (12) At the same time, the traditional avenues of admission (such as employment and traineeship) should be maintained, especially for doctoral students carrying out research as students, who should be excluded from the scope of this Directive and are covered by 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(5). (13) The specific procedure for researchers is based on collaboration between the research organisations and the immigration authorities in the Member States: it gives (5) Decision No 1513/2002/EC of the European Parliament and of the Council of 27 June 2002 concerning the sixth framework programme of the European Community for research, technological development and demonstration activities, contributing to the creation of the European Research Area and to innovation (2002 to 2006) (OJ L 232, 29.8.2002, p. 1). Decision amended by Decision No 786/ 2004/EC (OJ L 138, 30.4.2004, p. 7).

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the former a key role in the admission procedure with a view to facilitating and speeding up the entry and residence of third-country researchers in the Community while preserving Member States’ prerogatives with respect to immigration policing. (14) Research organisations approved in advance by the Member States should be able to sign a hosting agreement with a third-country national for the purposes of carrying out a research project. Member States will issue a residence permit on the basis of the hosting agreement if the conditions for entry and residence are met. (15) In order to make the Community more attractive to third-country researchers, they should be granted, during their stay, equal social and economic rights with nationals of the host Member State in a number of areas and the possibility to teach in higher education establishments. (16) This Directive adds a very important improvement in the field of social security as the non-discrimination principle also applies directly to persons coming to a Member State directly from a third country. Nevertheless, this Directive should not confer more rights than those already provided in existing Community legislation in the field of social security for third-country nationals who have cross-border elements between Member States. This Directive furthermore should not grant rights in relation to situations which lie outside the scope of Community legislation like for example family members residing in a third country. (17) It is important to foster the mobility of third-country nationals admitted for the purposes of carrying out scientific research as a means of developing and consolidating contacts and networks between partners and establishing the role of the European Research Area at world level. Researchers should be able to exercise mobility under the conditions established by this Directive. The conditions for exercising mobility under this Directive should not affect the rules currently governing recognition of the validity of the travel documents. (18) Special attention should be paid to the facilitation and support of the preservation of the unity of family members of the researchers, according to the Council Recommendation of 12 October 2005 to facilitate the admission of thirdcountry nationals to carry out scientific research in the European Community(6). (19) In order to preserve family unity and to enable mobility, family members should be able to join the researcher in another Member State under the conditions determined by the national law of such Member State, including its obligations arising from bilateral or multilateral agreements. (20) Holders of residence permits should be in principle allowed to submit an application for admission while remaining on the territory of the Member State concerned. (21) Member States should have the right to charge applicants for the processing of applications for residence permits. (22) This Directive should not affect in any circumstances the application of Council Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uniform format for residence permits for third-country nationals(7). (23) The objectives of this Directive, namely the introduction of a special admission procedure and the adoption of conditions of entry and residence applicable to third-country nationals for stays of more than three months in the Member States for the purposes of conducting a research project under a hosting agreement with a research organisation, cannot be sufficiently achieved by the Member States, espe(6) (7)

See page 26 of this Official Journal. OJ L 157, 15.6.2002, p. 1.

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cially as regards ensuring mobility between Member States, and can therefore be better achieved by the Community. The Community is therefore entitled to take measures in accordance with the subsidiarity principle laid down in Article 5 of the Treaty. In accordance with the principle of proportionality set out in that article, this Directive does not go beyond what is necessary to achieve those objectives. (24) Member States should give effect to the provisions of this Directive without discrimination on the basis of sex, race, colour, ethnic or social origin, genetic characteristics, language, religion or beliefs, political or other opinions, membership of a national minority, fortune, birth, disabilities, age or sexual orientation. (25) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. (26) In accordance with paragraph 34 of the Interinstitutional agreement on better law-making, Member States will be encouraged to draw up, for themselves and in the interest of the Community, their own tables, which will, as far as possible, illustrate the correlation between this Directive and the transposition measures, and to make them public. (27) In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and the Treaty establishing the European Community, Ireland has given notice by letter of 1 July 2004 of its wish to participate in the adoption and application of this Directive. (28) In accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and the Treaty establishing the European Community, and without prejudice to Article 4 of the said Protocol, the United Kingdom is not participating in the adoption of this Directive and is not bound by it or subject to its application. (29) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community, Denmark does not take part in the adoption of this Directive, and is not bound by it or subject to its application, HAS ADOPTED THIS DIRECTIVE:

CHAPTER I GENERAL PROVISIONS Article 1 Purpose This Directive lays down the conditions for the admission of third-country researchers to the Member States for more than three months for the purposes of carrying out a research project under hosting agreements with research organisations. Content I. II. III. IV. V.

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General remarks and structure of the Directive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . New developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Researchers Directive 2005/71/EC

Part C VI

I. General remarks and structure of the Directive The Researchers’ Directive 2005/71/EC determines the conditions of admission of 1 third-country nationals for the purpose of research. The Directive was adopted on the basis of Article 63(3)(a) and (4) TEC (now Article 79(2)(a) and (b) TFEU). It is structured into six chapters. General provisions, comprising the purpose of the Directive, definitions and scope are set out in Chapter I (Article 1–4). The Directive only covers stays for more than three months (Article 1). Specific groups of persons, e. g. students within the meaning of the Students Directive 2004/114/EC and asylum seekers, are excluded from the scope (Article 3(2)). Chapter II (Article 5–6) deals with the special and innovative system for the division of roles between Member States and research organisations, Article 5 regulating the approval of research organisations and Article 6 regulating the hosting agreement between researcher and research organisation. Chapter III (Article 7–10) contains conditions for admission, governs the period of validity, deals with family members, and sets out conditions for the renewal and withdrawal of residence permits. Chapter IV (Article 11–13) lays down the researcher’s rights while residing in the host Member State. The organisation of national administrative procedures is set out in Chapter V (Article 14–15). Chapter VI (Article 16–21) comprises final provisions.

II. Purpose Article 1 describes the purpose of the Directive to be laying down the conditions for the 2 admission of researchers for more than three months for the purpose of carrying out a research project under hosting agreements with research organisations; see also recital 4–6. The EU-wide regulation of admission conditions for third-country researchers is 3 based on the political objective set by the Barcelona European Council of 15 and 16 March 2002 to devote 3 % of the Member States’ Gross Domestic Product to research and technological development by 2010; this aim is now supposed to be fulfilled by 2020.1 In order to achieve this goal, the EU was going to need 700,000 additional researchers (to achieve the goal by 2020, this number is now at one million2) and as, according to the Council and the Commission, the EU was unlikely to produce this considerable number of researchers itself, it was considered necessary to take measures to attract and retain researchers from outside the Union.3 Compared to the development of the Students Directive 2004/114/EC,4 the genesis of 4 this Directive does not show clearly if the Directive intends for the stay of persons under this Directive to be of a strictly temporary nature or of the nature to allow for permanent settlement of the researcher according to the Long Term Residents’ Directive 2003/109/EC. The reasons for this may lay in the fact that Member States were not as uneasy concerning researchers’ more permanent immigration as some had been concerning the persons under the Students Directive 2004/114/EC. Also, the legislator 1

European Council Conclusions of 17 June 2010 Council doc. EUCO 13/10 ‘Europe 2020’. Ibid. 3 Commission Communication, COM(2001)331, p. 6; Council Resolution concerning the reinforcement of the mobility strategy within the European Research Area (ERA) (OJ 2001 C 367/1) Point 2; Council Conclusions on progress made in the development of the European Research Area and on providing it with new momentum, Council doc. 14913/02 Point 11; Commission Proposal, COM(2004) 178, p. 2–3. 4 See above, Hailbronner/Gies, Students Directive 2004/114/EC, Article 1 MN 3. 2

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expected that researchers needed more incentives in order for them to come to the EU than persons falling under the Students Directive 2004/114/EC and the prospect of permanent settlement is a strong such enticement. Finally, the Commission and the Member States (in the Council) have recorded their desire not just to attract but also to retain third-country researchers (see above). Brain drain, as one of the negative consequences of permanent settlement by nationals of less developed countries never played as big as a role as it had played concerning students, e. g. according to the Commission’s proposal, concerns for brain drain are only to be observed by flanking measures;5 this shows also in recital 6. From this context, it is understandable that the Directive on the one hand does not provide itself for a solidification of the researcher’s status (e. g. by providing a right to stay in the EU to identify other working opportunities after the research stay is concluded), but on the other hand does not hinder solidification by repeated renewal, also for new research projects with different research organisations (see below Article 8 MN 14)). Also, researchers have access to long term residence status (see below Article 8 MN 15–18). The recast will give up on temporariness by shifting the focus to Europe’s need for third-country nationals to fill job openings6 and providing for example access to the job market for researchers after the research is completed.7 5 A major purpose of the Directive consists in a fast admission procedure and a uniform status in aliens law for the purpose of carrying out scientific research.8 Admitted researchers do not have to obtain a work permit in Member States. Similarly, any form of quotas set by Member States having the effect of limiting the number of researchers who can be admitted under this Directive, is not compatible with the Directive.9 Alongside the special admission procedure for researchers under the Directive, other avenues in EU law (trainee and student under the Students Directive 2004/ 114/EC, employee under the Blue Card Directive 2009/50/EC) and avenues in national law continue to exist.10 6 The limitation of the scope of application to a stay of more than three months follows from the fact that research stays for up to three months in the EU are already covered by the uniform Schengen Visa, which allows researchers to move around freely within the Schengen Area. 7 Somewhat contrary to the general purpose to facilitate the admission of researchers, the Directive requires a specified research project which is to be carried out in the confines of a hosting agreement. Therefore, admission outside specific research projects and/or hosting agreements is subject to the rules of the Blue Card Directive 2009/50/EC.

III. Drafting history 8

The Lisbon European Council of 23 and 24 March 2000 recognised that Europe’s future economic development would depend on its ability to create high-value, innovative and research-based sectors and therefore called for the realisation of a ‘knowledge society’ as a key to higher growth and employment rates.11 Part of this so-called ‘Lisbon strategy’ 5

Commission Proposal, COM(2004) 178, p. 4. Commission Recast Proposal COM(2013) 151, p. 3; concerning the conceptual underpinning of EU immigration policy in general see above Thym, Legal Framework for EU Immigration Policy, MN 4. 7 Council doc. 13974/15, p. 49. 8 Commission Proposal, COM(2004) 178, p. 9. 9 Ibid. 10 Ibid. 11 Lisbon European Council of 23/24 March 2000, Presidency conclusions, at 24 et seqq., available at: http://www.europarl.europa.eu/summits/lis1_en.htm [last accessed 16 June 2016]. See already: Commission Communication COM(2000) 6 ‘Towards a European Research Area’. 6

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was the European Research Area. In response to an expert group’s report of 4 April 2001, the Commission adopted a communication proposing a mobility strategy for the European Research Area.12 Among the practical suggestions was the introduction of a specific admission procedure for third-country researchers as one element of a comprehensive European migration policy based upon the controlled opening of legal immigration channels. This approach was considered particularly appropriate in the case of researchers who make up a special category of well-qualified migrants of the type the EU most needs. Then, on 16 March 2004, the Commission launched its proposal for the Researchers’ 9 Directive 2005/71/EC.13 The Proposal was intended to complement the – later dropped14 – proposal for a directive on the conditions of entry and residence of third-country residents for the purpose of paid employment and self-employed economic activity, which also made a specific provision for the adoption of community measures specifically for researchers.15 The Directive was also to supplement the Proposal for the Students Directive 2004/114/EC,16 which covers inter alia students studying for a doctorate. The Proposal was discussed between April 2004 and September 2005. On 18 Novem- 10 ber 2004, the Council reached political agreement.17 The European Parliament on 1 April 2005 delivered its report and recommendations.18 On 12 October 2005, the Directive was adopted by the Council under the procedure laid down in Article 67 TEC by a unanimous vote. Ireland has opted into, the UK has opted out of the Directive, and Denmark was not 11 eligible to participate in it (see recitals 27–29). The remaining Member States were obliged by Article 17 to implement the Directive by 12 October 2007.

IV. Other instruments In the middle of the discussions, on 11 March 2005, the Commission, on the basis of 12 Article 165 TEC (now Article 181 TFEU), passed a Recommendation on a ‘European Charter for Researchers and on a Code of Conduct for the Recruitment of Researchers’.19 The Recommendation was intended to provide Member States, employers, funders and researchers with a valuable instrument to undertake, on a voluntary basis, further initiatives for the improvement and consolidation of researchers’ career prospects in the EU and for the creation of an open labour market for researchers. The Commission Proposal for the Directive was made up of the proposal for the 13 Directive and two proposals for Council recommendations. One recommendation called on the Member States to adopt a number of practical measures without delay, since it was going to take several years before the Directive was going to be in full operation. The other recommendation deals with the more specific question of visas. The recommendation on visas was adopted shortly before the Directive, on 28 Sep- 14 tember 2005 by the Council and the European Parliament together20 recommending Member States: 12 COM(2001) 331; von Loeffelholz, ‘Umsetzung der EU-Forscherrichtlinie: Vereinfachtes Zulassungsverfahren fu¨r Forscher aus Drittstaaten’, in Barwig et al. (eds.), Hohenheimer Tage zum Ausla¨nderrecht 2009 (Nomos 2010), p. 213, 215. 13 Commission Proposal, COM(2004) 178. 14 Commission Communication, COM(2005) 462, p. 12. 15 Commission Proposal, COM(2001) 386. 16 Commission Proposal, COM(2002) 548. 17 Council doc. 14473/04. 18 EP A6-0054/2005. 19 OJ 2005 L 75/67. 20 OJ 2005 L 289/23.

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1. to facilitate the issue of visas by undertaking to expedite the examination of visa applications from researchers from third countries subject to a visa requirement under Regulation (EC) no. 539/2001; 2. to promote the international mobility of researchers from third countries needing to travel frequently within the European Union by issuing them with multiple entry visas. When determining the period of validity of the visas, Member States should take into account the duration of the research programmes in which the researchers are taking part; 3. to undertake to facilitate the adoption of a harmonised approach to the supporting evidence that researchers are required to enclose with their visa application. They should consult the approved research organisations on this matter; 4. to encourage the issue of visas without administrative fees for researchers, in accordance with the rules laid down in the acquis communautaire; 5. to take account of the goal of facilitating the issue of visas to researchers from third countries when engaging in local consular cooperation, in order to promote the exchange of best practices; 6. to undertake to supply the Commission by 28 September 2006 with information about best practices adopted to facilitate the issue of uniform visas for researchers, so as to enable it to evaluate the progress made. Having regard to whether or not the directive on a specific procedure for admitting third-country nationals for the purposes of scientific research is adopted, and to the outcome of the evaluation, the possibility of incorporating the provisions of the Recommendation in an appropriate legally binding instrument should be examined.

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The recommendation on admission was adopted together with the Directive.21 The Council recommends Member States: 1. in the area of admission for the purpose of carrying out research: (a) to encourage the admission of researchers into the Community, by providing them with favourable conditions for carrying out research, preferably by exempting them from work permit requirements, or alternatively by providing for work permits to be issued automatically or under fast-track procedures; (b) to refrain from using quotas to restrict the admission of third-country nationals for research posts; (c) to guarantee third-country nationals the possibility of working as a researcher, including the possibility of extension or renewal of work permits where appropriate; 2. in the area of residence permit: (a) to issue residence permits in response to applications from third-country nationals for purposes of research as soon as possible, and facilitate fast-track procedures; (b) to guarantee third-country nationals working as researchers that their residence permits will be renewed; (c) gradually to involve the research organisations in the admission procedure for researchers; 3. in the area of family reunification, to facilitate and support the reunification of family members, by providing them with favourable and attractive conditions and procedures; 4. in the area of operational cooperation: (a) to facilitate access of researchers to the relevant information and promote its availability on all the relevant information sources; (b) to promote contact persons networks within the competent administrations; (c) to encourage research organisations to develop such networks; (d) to inform the Commission of the measures they have adopted in order to facilitate the admission of researchers from third countries.

V. New developments 16

A report of the Directive’s application was announced by Article 16 for November 2008 and was finally delivered by the Commission in September 2011.22 A number of EU policy documents concerning the mobility of researchers to and within Europe was developed which all stress the importance of furthering the mobility of researchers to and within the EU.23 Finally, a recast proposal, which suggests the consolidation of the 21

OJ 2005 L 289/26. Commission Report, COM(2011) 901. 23 Council Resolution (16096/1/07 REV 1) on modernising universities for Europe’s competitiveness in a global knowledge economy; Council conclusions (OJ 2010 C 135/12) on the internationalisation of 22

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Researchers Directive 2005/71/EC

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Students Directive 2004/114/EC and the Researchers Directive 2005/71/EC, was introduced in March 2013.24 The implementation report25 and the recast proposal26 identified problems of application under the existing Directive which put into question whether third-country nationals consistently receive fair treatment; in particular some of the existing rules are considered as being unclear and leaving too much scope of interpretative discretion to the Member States.27 Also, the number of residence permits issued under the Directive being only at 6,945 in 201028 is considered as being unsatisfactory in order to achieve the goal to attract more third-country researchers to the EU in order to finally meet the goal of increasing Research and Development investment to 3 % of Gross Domestic Product by 2020 which will require one million additional researchers.29 The recast proposal suggested many changes concerning these issues30 but many advised solutions have been made much more complicated or rejected or watered down significantly by the Council.31 Political agreement on the new Directive32 was reached on 17 November 2015.33

Article 2 Definitions For the purposes of this Directive: (a) ‘third-country national’ means any person who is not a Union citizen within the meaning of Article 17(1) of the Treaty;

higher education; Commission Communication, COM(2011) 500, A Budget for Europe 2020; Commission Communication, COM(2011)567 Supporting growth and jobs – an agenda for the modernisation of Europe’s higher education systems; Council Conclusions (OJ 2011 C 372/09) of on the modernisation of higher education. 24 Commission Recast Proposal, COM(2013) 151 with Commission Impact Assessment, SWD(2013) 77 and SWD(2013) 78. 25 Commission Report, COM(2011) 901. 26 Commission Impact Assessment, SWD(2013) 77, p. 10. 27 Commission Impact Assessment, SWD(2013) 77, p. 10; see also Wiesbrock, Legal Migration, p. 495 who finds that the Directive is unlikely to achieve its objectives in light of its rather bureaucratic procedures and the existence of more favourable national procedures. But see also the ICMPD-report on which the Commission Report is based: ICMPD, Researchers Directive, p. 2 finds that ‘there are some shortfalls, and improvements are recommended, but at the same time it has to be concluded that there is a clearly measurable quantitative impact of the implementation of the Directive, that the majority of research organisations and […] researchers affected evaluate their respective experiences as rather positive, and that the latter do not encounter specific disadvantages or discrimination.’ 28 Commission Report, COM(2011) 901, p. 9; it should be noted however that figures on persons in possession of a residence permit under the Directive allow no conclusion on the actual number of third country nationals resident within the EU Member States performing research activities, as many of them hold other kinds of residence permits such as a Blue Card. 29 Commission Report, COM(2011) 901, p. 9; European Council Conclusions of 17 June 2010 Council doc. EUCO 13/10 ‘Europe 2020’. 30 Commission Recast Proposal, COM(2013) 151; Commission Impact Assessment, SWD(2013) 77. 31 See for an analysis of the proposal in comparison with the Council position: Peers, More research is needed: the EU’s attempt to attract more non-EU researchers and students (EU Law Analysis, 23 January 2015) available at: http://eulawanalysis.blogspot.de/2015/01/more-research-is-needed-eus-attempt-to.html [last accessed 15 June 2015]; see for a first comparison of the old and the new Directive: Peers, The new Directive on immigration of students and researchers: a small step or a big leap forward? (EU Law Analysis, 23 November 2015) available at: http://eulawanalysis.blogspot.de/2015/11/the-new-directive-onimmigration-of.html [last accessed 29 November 2015]. 32 Council doc. 13974/15. 33 European Parliament, Press Release Reference No: 20151117IPR03054.

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(b) ‘research’ means creative work undertaken on a systematic basis in order to increase the stock of knowledge, including knowledge of man, culture and society, and the use of this stock of knowledge to devise new applications; (c) ‘research organisation’ means any public or private organisations which conducts research and which has been approved for the purposes of this Directive by a Member State in accordance with the latter’s legislation or administrative practice; (d) ‘researcher’ means a third-country national holding an appropriate higher education qualification, which gives access to doctoral programmes, who is selected by a research organisation for carrying out a research project for which the above qualification is normally required; (e) ‘residence permit’ means any authorisation bearing the term ‘researcher’ issued by the authorities of a Member State allowing a third-country national to stay legally on its territory, in accordance with Article 1(2)(a) of Regulation (EC) No 1030/2002. Content I. General remarks and drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Third-country national (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Research (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Research organisation (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Researcher (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Residence permit (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 2 3 6 8 10

I. General remarks and drafting history 1

Article 2 is based largely on terms which are already used in older Community legislation.34 Member States entered reservations against the definition of ‘researcher’ on the grounds of a too wide or too narrow scope of application of the Directive. The arguments raised concerning the qualifications of a person in order to qualify as a ‘researcher’ were similar to the ones raised in the Council in 2008/2009 on the Blue Card Directive Proposal. In the end, the Commission Proposal was adopted with some changes in the definition of the term ‘researcher’ and ‘research organisation’. One implementation issue, which is pointed out regularly, is that most Member States did not or at least not literally transpose the definitions of Article 2. This inhibits uniform interpretation and application of the Directive and a clear categorization of thirdcountry researchers as a group that is distinct from other types of immigrants and entitled to benefit from specific rights and opportunities.35

II. Definitions 1. Third-country national (a) 2

The term ‘third-country national’ refers to people who do not possess the nationality of a Member State of the EU including stateless persons (see Article 20 TFEU).36

34

Commission Proposal, COM(2004) 178, p. 13. Commission Report, COM(2011) 901, p. 2–3; ICMPD, Researchers Directive, p. 2–3. 36 Commission Proposal, COM(2004) 178, p. 13. 35

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2. Research (b) The adopted definition of ‘research’ comes from the ‘Frascati-Manual’ produced by the 3 OECD for surveys on research and experimental development. The definition is to cover basic and applied research as well as experimental development. The explicit mentioning of the use of knowledge to devise new applications clarifies that the purpose of the Directive is to facilitate also the admission of researchers concerned with commercial applications of scientific achievements.37 The definition therefore covers systematic work, drawing on existing knowledge gained from research and/or practical experience, which is directed to producing new material, products or devices, to installing new processes, systems and services, or to improving substantially those already produced or installed.38 The requirement of creative work undertaken on a systematic basis, on the other 4 hand, excludes mere reproductive activities. The term ‘creative work’ requires at least the intention to urge for new knowledge either in understanding theories of sciences or their application in practice. Research to be undertaken on a systematic basis must employ scientific standards. Use of handcraft techniques or mere experimental activities are not as such sufficient to qualify as research within the sense of the Directive. The definition obviously leaves the competent authority with some discretionary 5 power. It is intended as a guide to assist Member States in determining whether an organisation should be approved.39 The definition is also intended to help Member States wishing to verify that the project for which an approved organisation has signed a hosting agreement is a genuine research project.40 Further guidelines may be found in the Frascati-Manual.41

3. Research organisation (c) Decisive criterion is that the organisation conducts research, whether commercial or 6 not. The conduct of research does not have to be the organisation’ only activity, but it needs to include research in its activities on a systematic basis. It is therefore not sufficient that an organisation uses knowledge based upon research to carry out its commercial activities. The term ‘public or private organisations’ clarifies that any private organisation, 7 whether a ‘firm’ in a legal sense or not,42 may be entitled to accreditation. A research organisation may be a university, a foundation, a research centre, a laboratory, a firm, a company, an international organisation or a non-governmental organisation.

4. Researcher (d) Draft Article 2 defined a researcher to be a

8

‘third-country national holding a post-graduate (master’s or equivalent) degree admitted to the territory of a Member State of the European Union for the purposes of conducting a research project at a research organisation’.43 37

See Kluth, Zeitschrift fu¨r Ausla¨nderrecht 2008, p. 234. Commission Proposal, COM(2004) 178, p. 13 referring to the Frascati-Manual, 6th edn (OECD 2002), p. 30 available at: http://www.oecd.org/ [last accessed 16 June 2016]. 39 Commission Proposal, COM(2004) 178, p. 13. 40 Ibid. 41 Frascati-Manual, 6th edn (OECD 2002), p. 30 available at: http://www.oecd.org/ [last accessed 16 June 2016]. 42 Compare Article 2 Commission Proposal, COM(2004) 178 with final Directive. 43 Article 2 Commission Proposal, COM(2004) 178. 38

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Immigration

The definition was debated intensely and changed a few times in Council,44 some Member States arguing for a much more flexible definition, while others insisting on very high levels of education. The final definition is rather vague. Only one criterion for the ‘appropriate higher education qualification’ is straight forward: it must give access to doctoral programmes. The term ‘appropriate’ is grammatically missing the object of the appropriateness: appropriate for what? To connect the term with the research project, so that the qualification is appropriate if it is required for the concrete research project, would leave the last part of the definition without meaning. Finally, it is unclear, what standard is to be used to determine if a qualification is of higher education, if it gives access to doctoral programmes, and if it is appropriate. This last issue was discussed in Council, where some Member States wanted to refer to the national law of the host Member State, while according to the Commission reference should be made to the researcher’s country of origin.45 In the end, no reference at all was included in the text of the Directive and the issue remains unresolved. 9 The second part of the definition concerns the concrete research to be conducted by the researcher. The research organisation has to have selected the researcher ‘for carrying out a research project for which the above qualification is normally required’. This connects the concrete research project with the qualification: Only a project that normally requires the person conducting it to have the higher education qualification can count as a research project. The determination of this is the research organisation’s task, while the word ‘normally’ sets the limits of this discretion: the research organisation must act within the general confines of the national law and academic practice in its Member State. Therefore, to that respect, the national law of the host Member States applies to define the appropriate level of academic qualifications. From the phrase in Article 2(d), that the researcher has to be ‘selected by a research organisation’, together with Article 6(2)(a)(ii) and the non-mentioning in Article 7, it can be concluded that the conditions for being a researcher are not to be checked by the immigration authority but only by the research organisation. The implementation report by the Commission reveals that more than half of the Member States did not even transpose the definition of a ‘researcher’.46

5. Residence permit (e) 10

The definition of ‘residence permit’ refers to Article 1(2)(a) Regulation 1030/2002.47 Any other residence permit granted to scientists or highly qualified persons regardless of the fulfilment of the conditions under the Directive does not qualify as a residence permit under the Directive.

Article 3 Scope 1. This Directive shall apply to third-country nationals who apply to be admitted to the territory of a Member State for the purpose of carrying out a research project. 44 Council docs. 8838/04, p. 3; 10243/04, p. 3; 11186/04, p. 3; 11547/04, p. 3; 12259/04, p. 3; 12624/04, p. 3; 13135/04, p. 3. 45 Council docs. 10243/04, p. 3; 11547/04, p. 3; 12259/04, p. 3. 46 Commission Report, COM(2011) 901, p. 2–3. 47 Council Regulation (EC) No 1030/2002 (OJ 2002 L 157/1) uniform format for residence permits for third-country nationals.

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Researchers Directive 2005/71/EC

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2. This Directive shall not apply to: (a) third-country nationals staying in a Member State as applicants for international protection or under temporary protection schemes; (b) third-country nationals applying to reside in a Member State as students within the meaning of Directive 2004/114/EC in order to carry out research leading to a doctoral degree; (c) third-country nationals whose expulsion has been suspended for reasons of fact or law; (d) researchers seconded by a research organisation to another research organisation in another Member State. Content I. Scope of application (Article 3(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Exclusions from the scope (Article 3(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3

I. Scope of application (Article 3(1)) Alongside the special admission procedure for researchers under the Directive, other 1 avenues in EU law (trainee and student under the Students Directive 2004/114/EC, employee under the Blue Card Directive 2009/50/EC) and avenues in national law continue to exist.48 Researchers who have acquired a right of residence under the Long Term Residents’ 2 Directive 2003/109/EC have a right to mobility within the EU under that Directive. But this does not exclude the simultaneous application of the Researchers’ Directive, which is in some respects more advantageous.49

II. Exclusions from the scope (Article 3(2)) Article 3(2)(a) excludes persons residing in a Member State as applicants for inter- 3 national protection, and under temporary protection schemes from the Directive’s scope. Since recognized refugees and persons under subsidiary protection are not excluded from the scope, the Directive’s provisions apply to them to the extent of being more favourable. The recast Directive will exclude applicants and beneficiaries of international protection and of temporary protection completely.50 The exclusion of persons under national forms of temporary protection is question- 4 able. As Article 3(2)(a) speaks of ‘schemes’ in plural, they may be taken to be excluded also. Persons under other national protection statuses are not excluded. The recast refers specifically to EU law,51 hence under the future Directive, persons under national forms of protection will not be excluded anymore. Article 3(2)(c) excludes third-country nationals whose expulsion has been sus- 5 pended. The common motive is that the proper functioning of national rules on termination of residence should not be undermined by recourse to this Directive. It can be assumed, that the provision is meant to be a catchall provision for all groups of persons who are not covered by Article 3(2)(a). The exclusion applies irrespective of the

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Commission Proposal, COM(2004) 178, p. 9. Ibid, p. 10. 50 Council doc. 13974/15, p. 22. 51 Ibid. 49

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Part C VI Art. 4

Immigration

reasons for suspension. Therefore, prohibition of refoulement on the grounds of Article 3 ECHR52 is covered by this provision. 6 Article 3(2)(b) holds a problematic exclusion: Doctoral students are meant to be covered by the Students Directive 2004/114/EC, but if Member States require them to be under an employment contract, they may fall under neither Directive.53 Recital 12 of the recast postulats that Member States should treat doctoral candidates as researchers where appropriate.54

Article 4 More favourable provisions 1. This Directive shall be without prejudice to more favourable provisions of: (a) bilateral or multilateral agreements concluded between the Community or between the Community 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 persons to whom it applies. Article 4 sets up collision norms determining the relation between this Directive and other provisions which result from international agreements or national law governing the same subject. It is a modified version of the ‘more favourable provision clause’ which has been inserted into most directives on migration and asylum law.55 More favourable provision clauses are to make sure that EU harmonisation does not lead to national law becoming less favourable as a result of harmonisation (no race to the bottom). 2 The precise scope of national discretion arising from more favourable provision clauses and whether a provision can be considered more favourable is rather unclear.56 In the area of third-country researchers, the comments on the Students Directive 2004/ 114/EC may apply in analogy to a great extent.57 Importantly, Turkish researchers will more often than students be considered workers under EU/Turkey Association Law and therefore, the ECJ’s judgment Payir,58 applied in analogy to the Researcher’s Directive 2005/71/EC, has more practical implications for Turkish researchers than for Turkish persons under the Students Directive 2004/114/EC.59 Once, Turkish researchers have acquired a residence right under EU/Turkey Association Law, they will not have to fulfil the Directive’s admission conditions (Article 6 and 7) anymore, particularly they will not have to be involved in a specific research project anymore.60 1

52

ECtHR, Judgment of 7 July 1989, No. 14038/88, Soering v United Kingdom. See also Hailbronner/Gies Students Directive 2004/114/EC, Article 3 MN 15; Peers and others (eds), EU Immigration and Asylum Law Volume 2, p. 132. 54 Council doc. 13974/15, p. 7. 55 Concerning more favourable provisions clauses in general, see above Hailbronner/Thym, Part A, MN 28–33. 56 See on these issues, Hailbronner/Gies, Students Directive 2004/114/EC Article 4 MN 2–3, 7; Hailbronner/Thym Constitutional Framework MN 28–33. 57 Hailbronner/Gies Students Directive 2004/114/EC Article 4 MN 2–3, 7. 58 ECJ, Payir and Others, C-294/06, EU:C:2008:36. 59 See in detail Peers and others (eds), EU Immigration and Asylum Law Volume 2, p. 132–133. 60 Peers and others (eds), EU Immigration and Asylum Law Volume 2, p. 133. 53

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Art. 5

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CHAPTER II RESEARCH ORGANISATIONS Article 5 Approval 1. Any research organisation wishing to host a researcher under the admission procedure laid down in this Directive shall first be approved for that purpose by the Member State concerned. 2. The approval of the research organisations shall be in accordance with procedures set out in the national law or administrative practice of the Member States. Applications for approval by both public and private organisations shall be made in accordance with those procedures and be based on their statutory tasks or corporate purposes as appropriate and on proof that they conduct research. The approval granted to a research organisation shall be for a minimum period of five years. In exceptional cases, Member States may grant approval for a shorter period. 3. Member States may require, in accordance with national legislation, a written undertaking of the research organisation that in cases where a researcher remains illegally in the territory of the Member State concerned, the said organisation is responsible for reimbursing the costs related to his/her stay and return incurred by public funds. The financial responsibility of the research organisation shall end at the latest six months after the termination of the hosting agreement. 4. Member States may provide that, within two months of the date of expiry of the hosting agreement concerned, the approved organisation shall provide the competent authorities designated for the purpose by the Member States with confirmation that the work has been carried out for each of the research projects in respect of which a hosting agreement has been signed pursuant to Article 6. 5. The competent authorities in each Member State shall publish and update regularly lists of the research organisations approved for the purposes of this Directive. 6. A Member State may, among other measures, refuse to renew or decide to withdraw the approval of a research organisation which no longer meets the conditions laid down in paragraphs 2, 3 and 4 or in cases where the approval has been fraudulently acquired or where a research organisation has signed a hosting agreement with a third-country national fraudulently or negligently. Where approval has been refused or withdrawn, the organisation concerned may be banned from reapplying for approval up to five years from the date of publication of the decision on withdrawal or non-renewal. 7. Member States may determine in their national legislation the consequences of the withdrawal of the approval or refusal to renew the approval for the existing hosting agreements, concluded in accordance with Article 6, as well as the consequences for the residence permits of the researchers concerned. Content I. II. III. IV. V. VI.

General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Approval procedure (Article 5(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Financial responsibility of the research organisation (Article 5(3)) . . . . . . . 4 Confirmation that research work has been carried out (Article 5(4)) . . . . 8 Refusal to renew or withdrawal of the approval (Article 5(6)) . . . . . . . . . . . . 10 Consequences for the hosting agreements and residence permits (Article 5(7)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

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I. General remarks 1

Article 5 together with Article 2(c) lays down the conditions for an organisation in order to be allowed to host third-country researchers under the Directive. It is a cornerstone of the Directive’s innovative system of outsourcing immigration control. If Member States do not have a specific approval procedure to accredit organisations to host third-country researchers but rely on their general accreditation procedure for research organisation, this practice constitutes more favourable provisions under Article 4 because national research organisations do not have to undergo an additional approval procedure in order to admit researchers under the Directive.61

II. Approval procedure (Article 5(2)) Concerning the applicable rules for the approval, Article 5(2) basically refers to the national law and administrative practice of the Member States. However, the research organisation must provide proof that it actually conducts research. In the case of public research organisations, such as university or research institutions or publicly funded research organisations, no individual proof will usually be necessary if under national law the purpose to conduct research is evident. Also, the application must contain information on the ‘statutory tasks or cooperate purposes’. Again, this requirement is mitigated by the addition ‘as such information may be required as appropriate’. Finally, the approval shall be granted for a minimum period of five years. This takes account of rejections raised against the Commission’s suggestion to approve public and private organisations whose main task consists in conducting research in principle for an unlimited period.62 3 Article 5(2) does not state whether approval is within the responsibility of the state where the research organisation is located as had been originally proposed by the Commission. The Directive, therefore, leaves it to the Member States to determine the competence of the authorities where the research is conducted. It would be incompatible, however, with the purpose of the Directive to exclude research organisations seated outside the country of research from the possibility to file an application for approval provided that they are conducting research within the respective country. 2

III. Financial responsibility of the research organisation (Article 5(3)) 4

Article 5(3) is the result of a compromise between EU Member States. The original Commission Proposal had provided for an undertaking by the research organisation ‘that they will assume responsibility for residence costs, health costs, and the cost of return in respect of the researchers it hosts [… and that it] shall remain responsible for these costs for one year after the date of expiry of the hosting agreement […]’.63

Many Member States argued that this was too restrictive and might discourage the research organisations from looking for third-country researchers.64 Other Member States insisted on a strict responsibility.65 After lengthy discussions, the final Directive 61

Commission Report, COM(2011) 901, p. 3. Council docs. 8838/04, p. 5–6; 10243/04, p. 6. 63 Article 4(6) Commission Proposal, COM(2004) 178. 64 Council docs. 10243/04, p. 6 and 11186/04, p. 6. 65 Council doc. 11186/04, p. 6. 62

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now limits the financial responsibility to a larger degree than the original proposal,66 but the fact remains that research organisations are asked to carry an incalculable financial responsibility usually without having caused the illegal stay in the first place, and in any case without being able to do anything about ending the illegal stay of the third-country researcher. This may in fact still lead to research organisations being discouraged to host third-country researchers and is at odds with the purpose of the Directive to attract third-country researchers. Therefore, Article 5(3) needs to be interpreted restrictively. One may go so far as to limit the research organisation’s financial responsibility to those cases where the research organisation has (negligently) caused the illegal stay by its action or inaction.67 However, the issue was discussed controversially in the Council and this interpretation would largely override the legislator’s express compromise solution. Another limitation would be to exclude financial responsibility for costs incurred arising from a termination of residence as a result of circumstances which were not foreseeable for the research organisation. Costs incurred from the stay of a researcher which do not result from his remaining 5 illegally in the territory of the Member State concerned do not fall under Article 5(3). Therefore, if a researcher receives a residence permit for another purpose, the responsibility of the research organisation ends. The same applies with respect to another research organisation taking over responsibility for a researcher. Costs in the sense of Article 5(3) may not include costs arising from the researcher’s 6 illegal stay in another EU Member State68 as the wording ‘remains illegally in the territory of the Member State concerned’69 speaks clearly against an extension of the financial responsibility to living expenses incurred in another EU Member State than the host state.70 Member States are not obliged to require an undertaking of financial responsibility. 7 They are free to enact differentiated rules distinguishing, for instance, between private and public research organisations.71

IV. Confirmation that research work has been carried out (Article 5(4)) The provision enables the authorities responsible for approving research organisa- 8 tions to check that research projects are actually being carried out by approved organisations. The confirmation must show that the research has been carried out, without necessarily indicating the research findings, which may be confidential. During Council negotiations, it was suggested to include an additional provision 9 obliging the organisation to provide evidence that the researcher left the territory of the EU permanently. On the objection of various Member States wondering how the departure of a researcher on a permanent basis could be evidenced by the research organisation, the suggestion was (fortunately) given up.72 66

Council doc. 14023/04, p. 6. Suggested by Peers and others (eds), EU Immigration and Asylum Law Volume 2, p. 135. 68 This is provided for by section 20(3) Aufenthaltsgesetz (German Residence Act), BGBl. I, p. 162 (2008) as subsequently amended. 69 Emphasis added. 70 Like this also Wiesbrock, Legal Migration, p. 453; Peers and others (eds), EU Immigration and Asylum Law Volume 2, p. 135. 71 See e. g. section 20(2) Aufenthaltsgesetz (German Residence Act), BGBl. I, p. 162 (2008) as subsequently amended, providing for an obligatory undertaking only in case of ‘recognized research organisations’ and making exceptions if the activity of the research organisation is financed primarily from public funds or if there is a particular public interest in the carrying out of the research project. 72 Council doc. 13574/04, p. 6. 67

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V. Refusal to renew or withdrawal of the approval (Article 5(6)) During Council discussions, it was controversial whether the non-renewal and withdrawal as well as a ban from reapplication for approval should be obligatory or be left to the discretion of the Member States. A compromise proposal to distinguish between fraud (mandatory provision) and negligence (optional) was supported by a number of Member States, but did not receive general acceptance. Therefore, agreement was finally reached on the basis of discretion of Member States in both cases. During Council debate, the Council added ‘cases where an approval has been fraudulently acquired or where a research organisation has signed a hosting agreement […] fraudulently or negligently’. On the other hand, the adopted text does not feature the case anymore that a Member State has withdrawn or refused to renew the residence permit of a researcher with whom the organisation had a hosting agreement for reasons other than fraud or neglect. 11 Compared to the Commission Proposal,73 the adopted text ‘amongst other measures’ clarifies that non-renewal and withdrawal are not the only measures Member States may take; the list of possible measures is non-exhaustive,74 but from the last sentence of Article 5(6), which stipulates a stricter punishment than non-renewal and withdrawal, follows that harsher punishments than non-renewal or withdrawal are not ‘among other measures’ as one of them – a temporary ban on reapplying – is expressly regulated by Article 5(6). Just as with the choice of measure concerning a researcher’s residence permit (see below Article 10 MN 2), the Member State’s choice has to reflect the principle of proportionality, the protection of legitimate trust as well as the rule of law. 10

VI. Consequences for the hosting agreements and residence permits (Article 5(7)) 12

Article 5(7) speaks of the ‘consequences’ for hosting agreements and residence permits in the case that a research organisation has lost its approval. Potential consequences can be withdrawal or non-renewal of hosting agreements and residence permits of the third-country researchers hosted by the disapproved research organisation. This may lead to legal uncertainty for the concerned researchers as they may face termination of their residence permit for reasons entirely beyond their control. Article 5(7) therefore must be implemented restrictively.75

Article 6 Hosting agreement 1. A research organisation wishing to host a researcher shall sign a hosting agreement with the latter whereby the researcher undertakes to complete the research project and the organisation undertakes to host the researcher for that purpose without prejudice to Article 7. 73

Article 4(9) Commission Proposal, COM(2004) 178. For a different view see Peers and others (eds), EU Immigration and Asylum Law Volume 2, p. 135; Wiesbrock, Legal Migration, p. 468 states that instead of the list of measures, it is the list of grounds for refusal/withdrawal which is non-exhaustive. 75 Peers and others (eds), EU Immigration and Asylum Law Volume 2, p. 135–136; Wiesbrock, Legal Migration, p. 468. 74

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2. Research organisations may sign hosting agreements only if the following conditions are met: (a) the research project has been accepted by the relevant authorities in the organisation, after examination of: (i) the purpose and duration of the research, and the availability of the necessary financial resources for it to be carried out; (ii) the researcher’s qualifications in the light of the research objectives, as evidenced by a certified copy of his/her qualification in accordance with Article 2(d); (b) during his/her stay the researcher has sufficient monthly resources to meet his/ her expenses and return travel costs in accordance with the minimum amount published for the purpose by the Member State, without having recourse to the Member State’s social assistance system; (c) during his/her stay the researcher has sickness insurance for all the risks normally covered for nationals of the Member State concerned; (d) the hosting agreement specifies the legal relationship and working conditions of the researchers. 3. Once the hosting agreement is signed, the research organisation may be required, in accordance with national legislation, to provide the researcher with an individual statement that for costs within the meaning of Article 5(3) financial responsibility has been assumed. 4. The hosting agreement shall automatically lapse when the researcher is not admitted or when the legal relationship between the researcher and the research organisation is terminated. 5. Research organisations shall promptly inform the authority designated for the purpose by the Member States of any occurrence likely to prevent implementation of the hosting agreement. Content I. General remarks and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Conditions (Article 6(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Acceptance of the research project (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Sufficient monthly resources (b) and sickness insurance (c) . . . . . . . . . . . . 3. Specification of the legal relationship and working conditions (d). . . . . III. Statement of financial responsibility (Article 6(3)) . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Automatic termination (Article 6(4)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Information duties (Article 6(5)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 5 5 9 12 13 14 15

I. General remarks and drafting history The hosting agreement is a legal contract by which the researcher undertakes to 1 complete the research project and the research organisation undertakes to host the researcher for that purpose. It is concluded subject to the residence permit being issued by the immigration authorities and may be renewed several times between the same researcher and the same research organisation or with other approved organisations, provided the conditions of Article 6 are met.76 The hosting agreement is a cornerstone in the Directive’s innovative division of 2 roles between research organisations and the immigration authorities of the Member States.77 According to the Directive’s concept, the determination, if the conditions in 76 77

Commission Proposal, COM(2004) 178, p. 16. Ibid; see also Kluth, Zeitschrift fu¨r Ausla¨nderrecht 2008, p. 234.

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Article 6 for signing an agreement are fulfilled, is primarily the responsibility of the research organisation; however, according to Article 7(2), Member States may still check whether the conditions are indeed fulfilled.78 As the objective is to simplify the procedure, this double check – according to the Commission – will be performed by Member States only in exceptional or problematic cases.79 The outsourcing of the admission procedure to the research organisation is grounded in the trust to be built between Member States and research organisations (see recital 13 and below Article 7 MN 11).80 3 The provision as suggested by the Commission was adopted with only minor changes of primarily editorial character. Only Article 6(2)(d) regarding the specification of the legal relationship and working conditions of the researcher was added to the conditions. 4 The wording in Article 6(2) ‘the following conditions’ does not leave room for additional conditions in national law; the list of conditions is therefore exhaustive.81

II. Conditions (Article 6(2)) 1. Acceptance of the research project (a) The research project has to be accepted by the relevant authorities in the organisation and this acceptance is dependent upon an examination procedure by these authorities. In order to examine the project, it must be described in a document setting out – the research work that the person concerned intends to carry out, – the duration of the work and how it is to be funded, – the resources needed for the work (laboratory costs, costs of equipment etc.) and the remuneration paid to the researcher. Where the researcher is bound by an employment contract, the salary must be indicated, so that it can be monitored, – the researcher’s qualifications for the planned research (formal qualifications required, professional experience, etc.).82 6 It is not sufficient to describe research in very general terms which allow a wide variety of different employment possibilities. On the other hand, scientific research by its very nature cannot be exactly predicted either in its outcome or in its methodological directions. The hosting agreement should, therefore, allow sufficient flexibility for development. 7 It is questionable, if persons may conduct research as well as non-research activities at the research organisation. It has been argued that this should be possible because, according to recital 8, the eligibility of researchers should be defined broadly.83 The fact that even teaching as an activity other than research is regulated – and limited – specifically in Article 11, speaks against this. A person wanting to conduct research and non-research activities (other than teaching) will have to apply under the Blue Card Directive 2009/50/EC or national admission categories. 8 The new Directive will not force the researcher to be hosted for a concrete research project anymore, but will allow for hosting agreements concerning research activities.84 5

78

Commission Proposal, COM(2004) 178, p. 8. Ibid. 80 Ibid 81 Agreeing on different reasons: Peers and others (eds), EU Immigration and Asylum Law Volume 2, p. 75. 82 Commission Proposal, COM(2004) 178, p. 16–17. 83 Peers and others (eds), EU Immigration and Asylum Law Volume 2, p. 132. 84 Council doc. 13974/15, pp. 31–32. 79

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2. Sufficient monthly resources (b) and sickness insurance (c) The research organisation must have verified that the researcher has sufficient 9 resources to meet his/her needs (food, accommodation etc.) and travel costs and that he/she is not likely to need financial support from the host Member State. Since the Directive does not propose a minimum amount, it is up to the Member States to assess the resources required85 and then publish them. The Directive does not exclude a flexible procedure whereby deviations from a standard minimum amount may be granted in specific cases in which no burdens for the social welfare system are to be expected. In Germany, the necessary amount is 1.890 E in 2015.86 Young researchers often do 10 not earn this much and the amount may therefore be criticised as establishing too high of a threshold. But, according to the German Administrative Guidelines, the immigration authorities are requested to examine in such cases whether in spite of lower payment the condition can be considered as fulfilled.87 The decisive criteria are whether the foreigner on the basis of the individual examination would be entitled to claim social benefits. When calculating potential claims, accommodation expenses as well as contributions to sickness insurance and obligatory social insurance have to be taken into account. Sickness insurance according to Article 5(2)(c) is a basic requirement for admission 11 to and movement within the EU as laid down in many directives.88

3. Specification of the legal relationship and working conditions (d) This provision was inserted into the Directive by the Council without further 12 explanation.89 The Directive does not regulate the kind of legal relationship, a researcher ought to have with the research organisation (employment contract, scholarship, etc.);90 hence, Article 6(2)(d) ensures that the legal relationship between researcher and research organisation and the researcher’s working conditions are clearly set out in the hosting agreement. It is possible that both – hosting agreement and employment contract – are dealt with in one document as is the practice in some Member States.91 The Commission pointed out in its implementation report that the legal quality and format of the hosting agreement needs to become even clearer, as hosting organisations and researchers are uncertain what is needed for a valid hosting agreement.92

III. Statement of financial responsibility (Article 6(3)) The obligation to provide the researcher with an individual statement for assumption 13 of financial responsibility was controversial among Member States,93 and by way of a compromise, it was made discretional. 85 Peers and others want to make an analogy with the case law on the Family Reunification Directive 2003/86/EC, see Peers and others (eds), EU Immigration and Asylum Law Volume 2, p. 136. 86 See Section 2(3) Aufenthaltsgesetz (German Residence Act), BGBl. I, p. 162 (2008) as subsequently amended. 87 No. 2.3.7 Allgemeine Verwaltungsvorschriften zum Aufenthaltsgesetz (Administrative Guidelines concerning the Residence Act). 88 Commission Proposal, COM(2004) 178, p. 17. 89 Council doc. 11186/04, p. 8. 90 Commission Proposal, COM(2004) 178, p. 9; ICMPD, Researchers Directive, p. 3. 91 Commission Report, COM(2011) 901, p. 4. 92 Ibid, p. 9; Commission Impact Assessment, SWD(2013) 77, p. 16. 93 See Council docs. 11547/04, p. 8 and 12259/94, p. 8.

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IV. Automatic termination (Article 6(4)) 14

As an example for a termination according to Article 6(4), the Commission Proposal specifically mentions the case that a researcher subject to an employment contract is dismissed.94 Since termination of a hosting agreement may also affect a researcher’s residence permit, a dismissal challenged by a researcher before the competent authorities and courts may have to be suspended in its effects in order to grant effective judicial protection.

V. Information duties (Article 6(5)) 15

Article 6(5) is worded in a rather vague manner. An occurrence ‘likely to prevent implementation of the hosting agreement’ must be an event which is serious enough to assume that the hosting agreement cannot be pursued any further. The information duty does not only apply to misdemeanour by a researcher (e. g. lack of compliance with contractual duties) but also to objective factors making it unlikely that the research can be carried out. Therefore, loss of funding for the research, or a serious accident suffered by the researcher rendering her/him unable to carry out the planned project, will be such events. The provision is to enable Member States to take action promptly, in particular with regard to withdrawing the residence permit.95

CHAPTER III ADMISSION OF RESEARCHERS Article 7 Conditions for admission 1. A third-country national who applies to be admitted for the purposes set out in this Directive shall: (a) present a valid travel document, as determined by national law. Member States may require the period of the validity of the travel document to cover at least the duration of the residence permit; (b) present a hosting agreement signed with a research organisation in accordance with Article 6(2); (c) where appropriate, present a statement of financial responsibility issued by the research organisation in accordance with Article 6(3); and (d) not be considered to pose a threat to public policy, public security or public health. Member States shall check that all the conditions referred to in points (a), (b), (c) and (d) are met. 2. Member States may also check the terms upon which the hosting agreement has been based and concluded. 3. Once the checks referred to in paragraphs 1 and 2 have been positively concluded, researchers shall be admitted on the territory of the Member States to carry out the hosting agreement. 94 95

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Content I. II. III. IV.

Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Conditions for admission (Article 7(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Check of admission conditions (Article 7(1) and (2)) . . . . . . . . . . . . . . . . . . . . . . 10 Right to first admission (Article 7(3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

I. Drafting history Article 7(1) corresponds by and large to the original Commission Proposal.96 On the 1 request of several Member States, the additional clauses on checks were inserted and combined with a clause on admission once all the conditions for admission have been fulfilled.97

II. Conditions for admission (Article 7(1)) Article 7(1) lists exhaustively all conditions which applicants have to fulfil in order to be admitted under the Directive. The conditions differ from the usual admission conditions for third-country nationals insofar as a number of requirements which usually have to be fulfilled (sufficient resources, sickness insurance, etc.) may be considered as sufficiently guaranteed by checking the hosting agreement which can only be signed under the conditions of Article 6(2). This again is part of the Directive’s concept to outsource immigration control to research organisations. The research organisation has to provide the researcher with an individual statement that for costs within the meaning of Article 5(3), financial responsibility has been assumed by the research organisation. The reference to appropriateness does not only refer to the discretion of Member States to require the statement for admission in general but also to the discretion of Member States’ authorities to impose the general requirement in each specific case of admission. The need to present a valid travel document reflects standard practice. While the original Proposal contained only a reference to presentation of a valid passport or equivalent document, the final version contains a reference to national law which clarifies that the recognition of travel documents by third-country nationals is within the competence of Member States. The additional optional requirement with regard to the period of the validity of the travel document to cover at least the duration of the residence permit also corresponds to the standard practice of Member States to ensure voluntary or enforced return in accordance with international transport regulations. The public order proviso raises questions.98 Its interpretation is not restricted to the public order concept as developed by the ECJ with regard to restrictions of the free movement of Union citizens, but needs to be interpreted autonomously according to its wording and purpose.99 For the interpretation of the public order proviso, Member States have to observe the limits stemming from the general principles of EU law, e. g. proportionality and equality as well as the fundamental rights. Opposing public and private interests, e. g. the adverse 96

Article 6 Commission Proposal, COM(2004) 178. Council doc. 13135/04, p. 9. 98 See also Kluth, Zeitschrift fu ¨ r Ausla¨nderrecht 2008, p. 234, 237. 99 For a detailed discussion of this see above Hailbronner/Gies, Students Directive 2004/114/EC, Article 6 MN 7. 97

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effect on public interests and the impact of the non-admission or termination of residence on the third-country national’s further career, have to be balanced. However, as the admission is only a temporary one and as integration is not a purpose of the Directive, social ties and successful integration in the host country can only be of very limited importance. Nevertheless, migration authorities must respect Article 8 ECHR.100 8 Furthermore, the purpose of the Directive, which is to foster the admission of thirdcountry nationals, must be taken into account when defining the public interests. Therefore, labour market considerations cannot be defined as a part of the public policy. Recital 11 clarifies this. The recast Directive will reintroduce labour market considerations by allowing the application of volumes of admission101 and labour market tests.102 9 A threat to public policy may arise for example as a consequence of serious disturbance of international relations or the internal concepts of minority protection. Threats to public security may concern the purpose of the research envisaged, for instance whether the work could be sensitive from a military angle.103

III. Check of admission conditions (Article 7(1) and (2)) The obligation of Member States in the first subparagraph of Article 7(1) to check if the conditions referred to in the first subparagraph of Article 7(1) are met, was introduced during Council discussions in order to clarify the responsibility of Member States to examine whether the researcher obtaining the legal status under the Directive including a right of mobility under Article 13 does in fact fulfil all the conditions. 11 The additional option for Member States to check the terms upon which the hosting agreement is based was inserted in Article 7(2) in order to alleviate concerns that Member States may have to accept hosting agreements on a formal level although there are doubts as to whether the conditions for a hosting agreement are in fact fully met. As emphasized by recital 13, one goal of the Directive is to defer major elements of control from immigration authorities to research organisations. But there has been no real agreement on where to draw the line. If the basic organisational structure of the Directive is to be maintained, the migration authorities should generally assume that a hosting agreement complies with the requirements of Article 6.104 In its report, the Commission found that only six Member States transposed Article 7(2), but at the same time, most immigration authorities check the validity and the terms of the hosting agreement if there are doubts about the application.105 10

IV. Right to first admission (Article 7(3)) 12

The question of an obligation of Member States to admit researchers fulfilling the conditions (‘shall admit’) was raised early on in the Council debate.106 France was of the view that once all conditions were fulfilled, Member States should have no discretion as to whether to admit a third-country national under the Directive. Some Member States wanted to ensure that Member States should explicitly be given a right to control and 100

Rechtsbank’s Gravenhage of 15 October 2009 (AWB 08/21028, 08/21029). Article 5a Council doc. 13974/15, p. 27. 102 Article 18(3) Council doc. 13974/15, p. 44. 103 Commission Proposal, COM(2004) 178, p. 8. 104 Ibid. 105 Commission Report, COM(2011) 901, p. 5. 106 Council docs. 8838/04, p. 8; 10243/04, p. 9. 101

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check the requirements of Article 7 including the terms upon which a hosting agreement has been concluded. Both points were taken up in the newly inserted Article 7(3).107 Thus, the provision on checks may be considered as a kind of a compensation for the concession to insert a right to admission into the Directive. This right to first admission is also affirmed by the Commission Implementation Report.108 The term ‘admission’ includes also the issuance of visas not just that of residence permits.109 Article 14(4) clarifies that Member States shall grant every facility to obtain the requisite visas once the applicant meets the conditions of Articles 6 and 7. The recast will spell this out even clearer.110

Article 8 Duration of residence permit Member States shall issue a residence permit for a period of at least one year and shall renew it if the conditions laid down in Articles 6 and 7 are still met. If the research project is scheduled to last less than one year, the residence permit shall be issued for the duration of the project. Content I. Duration and renewal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Access to long term residence status. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. Duration and renewal Article 8 states as a basic principle a duration for one year unless the planned 1 research project is shorter in which case the permit covers the duration of the project. The principle of a minimum of one year is, according to the Commission, intended to simplify administrative procedures. Member States are also free to issue permits for more than one year in order to cover the entire research project. Residence permits are to be renewed annually as long as the conditions for issue are met. It is important to note that, according to the Commission Proposal, renewal under 2 Article 8 is possible also in the case that the researcher wants to do a new research project either with the same organisation or a different one.111 This is in line with the general purpose of the Directive to provide for flexible terms of mobility for researchers who are a category of persons in need of much flexibility during their research career.

II. Access to long term residence status Neither the Researchers’ Directive 2005/71/EC nor the Long Term Residents’ 3 Directive 2003/109/EC deal with the question of access to long term resident status 107

Council doc. 1186/04, p. 9. Commission Report, COM(2011) 901, p. 5.; Kocharov, EL Rev 33 (2008), p. 913, 918; Peers and others (eds), EU Immigration and Asylum Law Volume 2, p. 137; Wiesbrock, Legal Migration, p. 460 (but referring for this to Article 15(1) which has nothing to do with an obligation to admit). 109 See on the term ‘admission’ also Hailbronner/Gies Students, Directive 2004/114/EC, Article 5 MN 2–4; Commission Impact Assessment, SWD(2013) 77, p. 15. 110 Article 3(r)–(s), Article 5(2), Article 29 Council doc. 13974/15. 111 Commission Proposal, COM(2004) 178, p. 18; like this also Peers and others (eds), EU Immigration and Asylum Law Volume 2, p. 140. 108

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by persons under the Researchers’ Directive explicitly. In the proposal, the Commission assumed that access would exist.112 However, this access depends on the interpretation of the exclusion clause in Article 3 Long Term Residents’ Directive 2003/109/EC. Access would be excluded if residence permits under the Researchers’ Directive were ‘formally limited’ or issued ‘solely on temporary grounds’ within the meaning of Article 3(2)(e) Long Term Residents’ Directive 2003/109/EC. The ECJ dealt with both terms in its Singh judgment.113 It found that the interpretation of both terms is not left to the national law of the Member States but must be interpreted as autonomous concepts of EU law.114 4 The ECJ held that ‘a formally limited residence permit […] whose formal limitation does not prevent the long-term residence of the third-country national concerned, cannot be classified as a formally limited residence permit within the meaning of Article 3(2)(e)’.115 Also, the Court stated that the renewability of a permit for successive periods ‘may be a strong indication […that the permit’s formal limitation] does not prevent the long-term residence of the third-country national.’116 Although a permit under the Researchers’ Directive 2005/71/EC is limited to the activity as a researcher, the permit is renewable for successive periods even beyond five-years and the researcher is not excluded from changing his/her status as researcher to other statuses. Hence, the permit’s limitation does not prevent the long-term residence of thirdcountry researchers and hence is not ‘formally limited’ within the meaning of Article 3(2)(e) Long Term Residents’ Directive 2003/109/EC. 5 Concerning the question, if researchers reside ‘solely on temporary grounds’, the ECJ stated that ‘Article 3(2) […] excludes from its scope residence of third-country nationals which, whilst lawful and of a possibly continuous nature, does not prima facie reflect any intention on the part of such nationals to settle on a long-term basis in the territory of the Member States. Thus, Article 3(2)(e) of Directive 2003/109 excludes from the scope of that directive residence ‘on temporary grounds’. Such grounds imply residence by a third-country national in the Member State concerned which is not long term. To that effect, the directive gives several examples of residence linked to the exercise of an activity which is per se of a temporary nature, such as au pair work, seasonal work or the provision of crossborder services.’117

The Court only excluded residence permits linked to activities which are by their very nature temporary and reiterated some of the examples given in Article 3(2)(e) Long Term Residents’ Directive 2003/109/EC. The permit under this Directive cannot be equated to these examples; it is not temporary by its very nature (see above MN 16). 6 The result that researchers have access to long term residence status is also congruent with the Directive’s purpose not only to attract but also to retain third-country researchers (see above Article 1 MN 2–4).118 7 From this judgment, it follows that researchers have ‘reasonable prospects for obtaining permanent residence’ within the meaning of Article 3(1) Family Reunification 112 Commission Proposal, COM(2004) 178, p. 5; like this also Peers and others (eds), EU Immigration and Asylum Law Volume 2, p. 139 footnote 69. 113 ECJ, Singh, C-502/10, EU:C:2012:636; see also Thym, Long Term Residents Directive 2003/109/EC, Article 3 MN 16 et seqq; Peers, ‘The Court of Justice lays the foundations for the Long-Term Residents Directive: Kamberai, Commission v. Netherlands, Mangat Singh’, CML Rev. 50 (2013), p. 529, 538–540, 543–545. 114 ECJ, Singh, C-502/10, EU:C:2012:636, paras 41–44. 115 Ibid, para 51; similarly before the judgment Peers and others (eds), EU Immigration and Asylum Law Volume 2, p. 299. 116 ECJ, Singh, C-502/10, EU:C:2012:636, para 54. 117 Ibid, paras 47–48. 118 Peers and others (eds), EU Immigration and Asylum Law Volume 2, p. 138–139.

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Directive 2003/86/EC.119 Article 25 of the recast will provide specifically for an application of the Family Reunification Directive 2003/86/EC and provides for derogations.120

Article 9 Family members 1. When a Member State decides to grant a residence permit to the family members of a researcher, the duration of validity of their residence permit shall be the same as that of the residence permit issued to the researcher insofar as the period of validity of their travel documents allows it. In duly justified cases, the duration of the residence permit of the family member of the researcher may be shortened. 2. The issue of the residence permit to the family members of the researcher admitted to a Member State shall not be made dependent on the requirement of a minimum period of residence of the researcher. Content I. II. III. IV.

Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duration (Article 9(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Admission conditions (Article 9(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rights of family members: access to the labour market . . . . . . . . . . . . . . . . . . . .

1 3 6 8

I. Drafting history The original Commission Proposal did not contain any rules on family reunion. 1 Although the Commission pointed out that family reunification for researchers who plan to settle in Europe is a very important factor and that it is therefore essential to make it easier for family members of researchers to enter the territory and reside there, it was felt that no further legislation should be passed on that subject.121 The Commission referred to the right to family reunification contained in the Directive on Family Reunification and to the Council Recommendation adopted together with the Directive122 (reprinted above Article 1 MN 14).123 During the Council debate concerning the duration of the residence permit for the 2 researcher regulated in Article 8, the question of residence permits for family members was repeatedly raised. Several Member States suggested to insert a provision providing for an equal duration of the validity of a residence permit of family members as well as for a renunciation of a requirement of a minimum period of stay of the researcher prior to the admission of the family member.124 Both suggestions were subsequently taken up. Other suggestions, even though supported by a vast majority of delegations were not successful.125 It seems that the major reasons for rejecting them was the feeling that the concerns of Member States could be accommodated by recital 18 together with the Council Recommendation.126 In its proposal for the Council Recommendation, the 119 Peers, ‘The Court of Justice lays the foundations for the Long-Term Residents Directive: Kamberai, Commission v. Netherlands, Mangat Singh’, CML Rev. 50 (2013), p. 529, 544. 120 Council doc. 13974/15, pp. 51–52. 121 Commission Proposal, COM(2004) 178, p. 5. 122 OJ 2005 L 289/15, 26. 123 Commission Proposal, COM(2004) 178, p. 5. 124 Council doc. 11186/04, p. 10. 125 E. g. a suggestion to limit the processing time for the issuance of family members’ residence permits (Council docs. 12259/04, p. 11 and 12624/04, p. 11). 126 OJ 2005 L 289/15, 26 reprinted above Article 1 MN 14.

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Commission had suggested a number of very concrete recommendations in the area of family reunification,127 but the Council watered this down to a rather general recommendation to facilitate and support the reunification of family members by providing them with favourable and attractive conditions and procedures. Thus, the only concrete interpretative guideline which can actually be derived from the Council Recommendation is that Article 9 should be interpreted in a way which achieves the goal to facilitate the admission of researchers by providing their family members with attractive conditions and procedures.

II. Duration (Article 9(1)) Article 9(1) does not regulate the conditions under which a residence permit is to be granted to family members of a researcher but only regulates the duration of the residence permit, once a positive decision to grant a residence permit has been issued. 4 The reservation with regard to the period of validity of travel documents takes account of general rules of entry and residence in the legislation of Member States since usually the validity of residence permits is dependent on the validity of the travel document. The wording of Article 9(1) does not allow for an exception, but Member States may as a more favourable provision under Article 4(2) allow a prolongation of a residence permit beyond a period of validity of travel documents under national law, particularly if a prolongation of validity of the travel document can be reasonably expected and if under international rules an expiry of the travel document does not terminate its validity for international travel right away. Since the status as a researcher under the Directive implies in principle a right to mobility within the EU, Member States issuing a residence permit will have to take into account the validity of travel documents for entry and residence within other EU Member States. 5 The possibility to shorten the duration of the residence permit of family members is granted only ‘in duly justified cases’. The drafting history does not indicate when such a duly justified case may be present. It might be assumed if there are facts indicating that an application for a residence permit for the purpose of family reunification is only a pretext for immigration for other purposes, or if it is not to be expected that the family unity is supposed to be established for the whole duration of the research project. 3

III. Admission conditions (Article 9(2)) Article 9 does not include a list of conditions for the admission of researchers’ family members. It is therefore left to the Member States’ discretion to develop these conditions in national law. Such conditions could be stable and regular resources, sickness insurance, or appropriate accommodation. Member States’ discretion is limited twofold: First, according to Article 9(2), Member States may not make the issuance of the residence permit to family members of researchers dependent on a minimum period of residence of the researcher. Second, conditions in national law may not run counter to the purpose of the Directive. A requirement, for instance, to comply with integration measures would seem to run counter to the temporary nature of a researcher’s residence permit. 7 Article 9(2) means also that Article 8(1) Family Reunification Directive 2003/86/EC needs to be adapted so that Member States may not require the two-year qualifying 6

127

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Art. 10

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period when applying that Directive to family members of third-country researchers.128 See on researchers being able to qualify under the Family Reunification Directive 2003/ 86/EC above Article 8 MN 19. Article 25 of the recast will provide specifically for an application of the Family Reunification Directive 2003/86/EC.129

IV. Rights of family members: access to the labour market One crucial factor of family reunification is not provided for by this Directive: the 8 issue of access to the labour market for family members (apart from access through the Family Reunification Directive 2003/86/EC). This is a great hindrance for family reunification and Point 3 of the Council Recommendation on admission130 should be followed by the Member States by providing full access to researchers’ family members as was the original proposal by the Commission,131 especially since the recast will provide for this also.132

Article 10 Withdrawal or non-renewal of the residence permit 1. Member States may withdraw or refuse to renew a residence permit issued on the basis of this Directive when it has been fraudulently acquired or wherever it appears that the holder did not meet or no longer meets the conditions for entry and residence provided by Articles 6 and 7 or is residing for purposes other than that for which he was authorised to reside. 2. Member States may withdraw or refuse to renew a residence permit for reasons of public policy, public security or public health. Content I. General remarks and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Grounds for withdrawal or non-renewal of the residence permit. . . . . . . . .

1 3

I. General remarks and drafting history The Commission Proposal dealt with withdrawal and non-renewal in two separate 1 articles (draft Article 8 and 9).133 In the Council, the two articles were melted together and two detailing provisions relating to the withdrawal and non-renewal for reasons of public policy, public security and public health were deleted. Article 10 largely reflects recognized practices in the administrative law of Member 2 States concerning withdrawal or non-renewal of administrative acts. Whereas a nonrenewal only affects the prospective residence, the withdrawal of a residence permit may impact the residence status with retroactive effect or with effect from the time of decision subject to national legislation. Article 10 does not provide for an obligation to 128

Like this also: Peers and others (eds), EU Immigration and Asylum Law Volume 2, p. 141. Council doc. 13974/15, pp. 51–52. 130 OJ 2005 L 289/26 reprinted at Article 1 MN 14. 131 Point 3(c) of the proposed Council Recommendation, Commission Proposal, COM(2004) 178, p. 39. 132 Article 25(7) Council doc. 13974/15, p. 52. 133 Commission Proposal, COM(2004) 178, p. 28. 129

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withdraw or refuse to renew nor does it state which instrument is to be used. The principles of proportionality, protection of legitimate trust as well as the rule of law will determine the administrative decision-making. Considerations include whether a third-country national can be made wholly or partially responsible for the reason of withdrawal/non-renewal. Also, an assessment will be necessary whether the continuation of a research stay is of essential individual and/or public importance. Family reunion considerations, integration into the society of the EU Member State and length of stay will, however, usually be of minor importance since the researcher’s residence permit is destined as temporary. Up to December 2011, no case could be identified by the Commission where a researcher’s residence permit had been withdrawn; only nonrenewals had taken place, e. g. 3 % of applications in Belgium and 22 % of applications in the Netherlands.134

II. Grounds for withdrawal or non-renewal of the residence permit The definition of what constitutes fraudulent behaviour in connection with the application for a residence permit is within the discretion of Member States, but this discretion is limited in terms of proportionality: not every usage of false or incomplete information may justify the termination of residence. Migration authorities have to assess the concrete situation and take into account the individual circumstances, e. g. whether the false/incomplete information was provided on purpose or accidentally, and whether the false information was of marginal importance. 4 The wording of the provision regarding residence for purposes other than research is rather vague: ‘purposes other than that for which he was authorised to reside’ can only mean ‘purposes other than the research project mentioned in the hosting agreement’. A person does not already reside for ‘other purposes’ if he/she pursues other purposes, such as family reunion, in addition to the main purpose. 5 For the interpretation of the terms ‘public policy, public security and public health’, see above Article 7 MN 6–9. 3

CHAPTER IV RESEARCHERS’ RIGHTS Article 11 Teaching 1. Researchers admitted under this Directive may teach in accordance with national legislation. 2. Member States may set a maximum number of hours or of days for the activity of teaching. 1

In substance, the principle that researchers should be given the right to teach was undisputed, provided that Member States keep the right to determine the details. While the Commission Proposal limited the teaching to ‘higher education establishments within the meaning of Member States’ legislation and administrative practice’,135 the adopted text does not contain a similar restriction. Instead, Article 11(1) refers in a 134 135

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general way to national legislation, thus leaving it to Member States’ discretion to determine the kind of teaching they allow third-country researchers. In its explanatory memorandum, the Commission stated that researchers ‘may 2 lecture on previous work or on the ongoing research they are involved in’.136 This suggests that there needs to be a connection between the researcher’s scientific research and his/her teaching activities. On the other hand, the Commission itself pointed to the ‘normal practice’ in Member States for researchers to teach.137 This ‘normal practice’ might well entail researchers teaching on issues which are not directly connected to their research. In the implementation report, the Commission identified only one country that restricted teaching to issues related to the research project.138 Article 11(2) allows Member States to set a maximum number of hours or of days139 3 in order to maintain the priority of the research purpose ensuring that teaching remains an ancillary activity. It is left to the Member State to specify the number of hours or days.

Article 12 Equal treatment Holders of a residence permit shall be entitled to equal treatment with nationals as regards: (a) recognition of diplomas, certificates and other professional qualifications in accordance with the relevant national procedures; (b) working conditions, including pay and dismissal; (c) branches of social security as defined in Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community(8). The special provisions in the Annex to Council Regulation (EC) No 859/2003 of 14 May 2003 extending the provisions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to nationals of third countries who are not already covered by these provisions solely on the ground of their nationality(9) shall apply accordingly; (d) tax benefits; (e) access to goods and services and the supply of goods and services made available to the public. Content I. General remarks and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Equal treatment rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1. Recognition of diplomas (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2. Working conditions (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 3. Social security (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 4. Tax benefits (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 5. Access to goods and services (e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 136

Ibid, p. 19. Ibid, p. 19. 138 Commission Report, COM(2011) 901, p. 7. 139 The Commission Proposal foresaw only hours, see Article 11 Commission Proposal, COM(2004) 178. (8) OJ L 149, 5.7.1971, p. 2. Regulation as last amended by Regulation (EC) No 647/2005 of the European Parliament and of the Council (OJ L 117, 4.5.2005, p. 1). (9) OJ L 124, 20.5.2003, p. 1. 137

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I. General remarks and drafting history 1

2

3

4 5

Article 12 is largely identical with the proposed Commission provision. A major change was made only with respect to point (c) (social security) which in the original Commission Proposal was referred to as ‘social insurance as defined by national legislation’. This formulation gave rise to numerous reservations and questions, resulting finally in an alternative wording of the clause on the suggestion of Austria.140 In addition, recital 16 was inserted into the Directive.141 Article 12 provides for equal treatment with nationals, not with EU citizens. The difference may be relevant in areas in which a Member State treats its own nationals less favourable than EU citizens because the former are not able to rely upon the EU fundamental freedoms (‘reverse discrimination’). One such area may be point (a), where based upon secondary EU law, special rules apply with regard to recognition of diplomas of EU citizens. Unequal treatment in the sense of Article 12 may also be assumed in cases of indirect discrimination which although providing equal treatment on a formal level amount to indirect discrimination on account of the effects of a national regulation or practice as regards third-country nationals. Article 12 does not leave margin for national derogation regarding equality rights.142 The Single Permit Directive 2011/98/EU grants additional equality rights which – depending on the individual situation – may be applicable to third-country researchers (see Article 3 and Article 12 Single Permit Directive 2011/98/EU). The recast Directive extends this applicability.143

II. Equal treatment rights 1. Recognition of diplomas (a) The recognition of diplomas, certificates and other professional qualifications must be granted on equal terms with nationals in accordance with the relevant national procedures. Equal treatment, thus, does not mean that diplomas, certificates and qualifications acquired in third countries must be recognised in the same way as comparable national diplomas, certificates and professional qualifications. Equal treatment amounts to the recognition of such diplomas acquired in third countries exclusively. Thus, procedures applicable for a Member State’s own nationals apply equally to holders of a residence permit. 7 Issues may arise with regard to indirect discrimination where relevant national procedures prescribe recognition requirements which may reasonably only be fulfilled by a state’s own nationals, like for instance practice in institutions of the respective EU Member State or language requirements. Such requirements may qualify as indirect discrimination if they cannot be justified on reasons of quality control or equivalence of standards. 8 The obligation to equal treatment consists only with respect to the recognition of diplomas and certificates which qualify generally as an entitlement to exercise a certain profession. Point (a) speaks of ‘other professional qualifications’ indicating that Arti6

140

See Council docs. 102243/04, p. 12; 11186/04, p. 12. Council docs. 10243/04, p. 12; 12259/04, p. 13; 14023/04, p. 13. 142 Peers and others (eds), EU Immigration and Asylum Law Volume 2, p. 144. 143 Article 21 Council doc. 13974/15, pp. 47–48. 141

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cle 12 does not deal with the recognition of academic titles, degrees or periods of study which do not entitle under the relevant national law to the exercise of a profession.

2. Working conditions (b) The term ‘working conditions including pay and dismissal’ denotes only such 9 conditions which have a direct relationship with the employment as a researcher under an employment contract. To add ‘pay and dismissal’ would be superfluous if the term ‘working conditions’ was already meant in a very wide sense as equal treatment with respect to all conditions whether related or not to a working contract. ‘Pay and dismissal’ cover labour aspects relating to the conclusion and termination of a working contract and remuneration in a wide sense which includes not only emoluments but also allowances related to sickness leave, exceptional leave for child care, exceptional gratifications, access to training facilities, etc. Equal treatment is guaranteed irrespective of the legal basis of a right or chance granted. The non-discrimination principle applies not only to agreements between employers and trade unions, but also with respect to informal agreements or practices in the respective enterprise or branch.

3. Social security (c) The original provision gave rise to many objections (see above MN 1). The text as 10 finally adopted refers not to national law anymore but to EU law. The 1971 Regulation144 together with Regulation (EC) No 859/2003145 (extending the 1971 Regulation to third-country nationals), to which Article 12 refers, have been replaced for all Member States other than the UK and Denmark by the 2004 Regulation (which took effect in 2010)146 together with Regulation 1231/2010147 extending it to third-country nationals. The latter does not entail the Annex mentioned in Article 12(c) anymore. Article 12(c) provides for equal treatment with nationals regarding those social 11 security branches listed in the 1971 Regulation (and now 2004 Regulation). According to the literal wording, this right to equal treatment arises independent of a crossborder situation needed to establish a case to which the Regulations on social coordination are applicable. But recital 16 states that Article 12(c) may not be interpreted as conferring ‘more rights than those already provided in existing community legislation’. Therefore, third-country researchers arguably only have equality rights under Article 12(c) if they find themselves in a cross-border situation between Member States (not between their state of origin and the host state).148 This is the case when they have moved under Article 13, but it may also happen, if they or their family member have lived in a Member State other than the host state before acquiring the status as a researcher under this Directive.

4. Tax benefits (d) Third-country researchers are entitled to the same tax benefits as nationals in their 12 employment situation as researchers. Questions may arise with regard to the meaning of 144

Regulation (EEC) No 1408/71 (OJ 1971 L 149/2) on the application of social security schemes. Regulation (EC) No 859/2003 (OJ 2003 L 124/1) extending the provisions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to nationals of third countries. 146 Regulation (EC) No 883/2004 (OJ 2004 L 166/1) on the coordination of social security systems. 147 Regulation (EU) No 1231/2010 (OJ 2010 L 344/1) extending Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to nationals of third countries. 148 For a different view Peers and others (eds), EU Immigration and Asylum Law Volume 2, p. 144–145. 145

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the equal treatment clause when tax benefits are dependent upon fulfilment of conditions in the respective Member State such as paying of insurance contributions to an insurance contract concluded within the country of residence, expenses for family members residing in the host country, or tax deductions relating to facts occurring in the host state. The extensive jurisprudence of the ECJ with regard to the application of the non-discrimination provision of Article 7(2) Regulation (EEC) No 1612/68149 cannot easily be transferred to Article 12(d) since it is based upon the principle of free movement of workers within the EU (Article 45 TFEU). There is no comparable basis for the interpretation of Article 12(d). Equal treatment with regard to tax benefits, thus, does not require an extension of tax benefits to factual situations outside the host country provided that a Member State can show reasonable grounds for making a distinction.

5. Access to goods and services (e) Equal treatment as regards access to goods and services and the supply of goods and services made available to the public concerns in a wide sense all supply systems on a local, regional or state level irrespective of a connection with an employment relationship. The clause covers publicly available facilities in the area of child care, culture, education, teaching, legal assistance, etc. The application of the clause is not restricted to state services. If goods and services are supplied by private organisations, point (e) is applicable as long as such goods and services are available to the public. 14 Indirect discrimination may result from making access to goods and services dependent upon conditions which third-country national researchers are regularly not able to fulfil, such as long time residence requirements, etc., if they cannot be justified. 13

Article 13 Mobility between Member States 1. A third-country national who has been admitted as a researcher under this Directive shall be allowed to carry out part of his/her research in another Member State under the conditions as set out in this Article. 2. If the researcher stays in another Member State for a period of up to three months, the research may be carried out on the basis of the hosting agreement concluded in the first Member State, provided that he has sufficient resources in the other Member State and is not considered as a threat to public policy, public security or public health in the second Member State. 3. If the researcher stays in another Member State for more than three months, Member States may require a new hosting agreement to carry out the research in that Member State. At all events, the conditions set out in Articles 6 and 7 shall be met in relation to the Member State concerned. 4. Where the relevant legislation provides for the requirement of a visa or a residence permit, for exercising mobility, such a visa or permit shall be granted in a timely manner within a period that does not hamper the pursuit of the research, whilst leaving the competent authorities sufficient time to process the applications. 5. Member States shall not require the researcher to leave their territory in order to submit applications for the visas or residence permits. 149 Regulation (EEC) No 1612/68 (OJ 1968 L 257/2) on freedom of workers, repealed by Regulation (EU) No 492/2011 (OJ 2011 L 141/1) on freedom of workers.

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Content I. General remarks and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Short-term and long-term stays in another EU Member State (Article 13(2) and (3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Visa application facilitation for exercising mobility (Article 13(4) and (5)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Portability of rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 6 8

I. General remarks and drafting history Intra-EU mobility is considered as one of the main elements to attract and then 1 retain third-country national researchers to the EU (see also recital 17).150 Intra-EU mobility, as suggested by the Commission, was drafted originally as a general right of a residence permit holder to conduct part of his/her research project on the territory of another Member State under cover of his/her original residence permit. Member States, however, were entitled ‘if necessary’ to require a new hosting agreement on the basis of which the researcher was going to be issued a residence permit in the second Member State.151 The proposal met with a variety of scrutiny reservations asking for a more clarifying and simpler wording particularly with respect to the admission procedure to the second Member State.152 Some Member States even suggested an optional wording. Various Member States emphasised that the implications of the Schengen area-relevant legislation should be considered. On the basis of a compromise suggestion of the Presidency153 which was based on a proposal of Germany,154 the article was split up in different parts distinguishing between a short-term research stay up to three months and a stay in another EU Member State for more than three months. In addition, a facilitation provision for granting a visa was inserted. The mobility rights under Article 13 add little to the researcher’s ability to enter the 2 second Member State, as the conditions for admission as a researcher (Article 7) must be met again,155 and so a researcher could just as much apply in the category of first admission.156 The restrictive requirements of Article 13 also do not interact well with EU funding programmes157 and are at odds with the political goal of the Tampere and the Stockholm Programme to approximate the rights of legally resident third-country nationals to those of EU citizens and to encourage labour migration as a way of increasing the EU’s competitiveness.158 At least, the second Member State must take into account that the conditions for admission have already been examined by the first Member State. It must also take into account that continuation of research is an 150 See on the reasons for this: Kocharov, EL Rev 33 (2008), p. 913, 915; see on the much higher mobility of third-country nationals compared to EU citizens: Turmann, A New European Agenda for Mobility CEPS Report (2004) cited in: Wiesbrock, EL Rev. 35 (2010), p. 455, 457. 151 Article 13(1) Commission Proposal, COM(2004) 178. 152 Council docs. 8838/04, p. 12; 11186/04, p. 13. 153 Council doc. 13135/04, p. 14. 154 Council doc. 12259/04, p. 14. 155 Kocharov, EL Rev 33 (2008), p. 913, 918. 156 Wiesbrock goes as far as calling free movement of third-country nationals an illusion, see Wiesbrock, EL Rev. 35 (2010), p. 455, 458. Sweden did not even see the need to implement Article 13 for this reason, see Wiesbrock, ibid, p. 468 and Wiesbrock, Legal Migration, p. 466–467. 157 Commission Impact Assessment, SWD(2013) 77, p. 17–18. 158 Wiesbrock, EL Rev. 35 (2010), p. 455, 458; European Council (10–11 December 2009), Stockholm Programme, Council doc. 17024/09, OJ 2010 C 115/1, 30; European Council (15–16 October 1999), Tampere Programme, Presidency Conclusions, no. 21. It is striking that the recast Directive’s provisions will be even more complicated (Articles 26–26B, 26E Council doc. 13974/15, pp. 52–59, 64–65).

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essential part of the concept of a European Research Area as determined by the Preamble of the Directive and therefore constitutes a public interest. Examination of admission conditions, thus, should generally not present a barrier to a continuation of a research project within the EU. 3 On the question of family reunification, Member States were divided. The suggestion of the Presidency whereby family members ‘should be able’ to join the researcher in another EU Member State met with criticism by Member States suggesting a right to family reunification, as well as by Member States preferring a mere option to grant family reunification.159 On the suggestion of France and Germany, agreement could be reached to insert recital 19.

II. Short-term and long-term stays in another EU Member State (Article 13(2) and (3)) Article 13(2) states that the right to continue a research stay in another Member State for a period of up to three months is dependent upon sufficient resources in the other Member States. The text as adopted does not refer to all of the conditions required for first admission. In spite of this limitation, it must be noted that research may only be carried out on the basis of the hosting agreement concluded in the first Member State which stipulates a number of requirements which must still be met during continuation of the research stay in the second Member State. 5 For research of more than three months, Article 13(3) permits Member States to require a new hosting agreement to carry out the research in the second Member State. In addition, it refers ‘at all events’ to the conditions set out in Articles 6 and 7. 4

III. Visa application facilitation for exercising mobility (Article 13(4) and (5)) Article 13(4) clarifies that a visa or residence permit necessary under the relevant national legislation must be granted in a timely manner within a period that does not hamper the pursuit of the research. The purpose of Article 13(4) is to allow a speedy process and requires specific procedures in order to enable a granting of a visa or residence permit in a short period of time. For stays up to three months, a visa will not be necessary for holders of a residence permit issued by a Schengen State, if the conditions of Article 21 Schengen Borders Code Regulation (EC) No 562/2006 are met.160 7 Article 13(5) has the same purpose: to enable a speedy issuance of a residence permit for the purpose of continuing research in another EU Member State. Therefore, it is indispensable to allow a submission of an application for admission while remaining on the territory of the Member State concerned. Although Article 13(5) does not specify the conditions in detail, Member States should allow third-country researchers in possession of a residence permit under the Directive to submit their application in a facilitated manner, such as to be allowed to refer to the documents submitted at the first application. 6

IV. Portability of rights 8

Article 13 does not expressly address the portability of the researcher’s rights (Article 11–12) to the second Member States. Even though this could be made clearer 159 160

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in the Directive, it may be assumed that these rights apply, at least where a hosting agreement in the second Member State has been concluded.161 The portability of social security rights in particular also follows from the EU rules on coordination of social security for third-country nationals.162

CHAPTER V PROCEDURE AND TRANSPARENCY Article 14 Applications for admission 1. Member States shall determine whether applications for residence permits are to be made by the researcher or by the research organisation concerned. 2. The application shall be considered and examined when the third-country national concerned is residing outside the territory of the Member States to which he/she wishes to be admitted. 3. Member States may accept, in accordance with their national legislation, an application submitted when the third-country national concerned is already in their territory. 4. The Member State concerned shall grant the third-country national who has submitted an application and who meets the conditions of Articles 6 and 7 every facility to obtain the requisite visas. Content I. Modalities of application (Article 14(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Application from within the territory (Article 14(3)) . . . . . . . . . . . . . . . . . . . . . . .

1 2

I. Modalities of application (Article 14(1)) Article 14(1) leaves it to the Member State to determine whether applications are to 1 be made by the researcher or by the research organisation. The provision, which was already contained in the Commission Proposal, intends to speed up the procedure by allowing host research organisations to lodge the application for admission on the researcher’s behalf.

II. Application from within the territory (Article 14(3)) In order to simplify the admission procedure and avoid researchers being required 2 to return to their country of origin in order to lodge an application there, Article 14(3) gives Member States an option to allow the application to be made on the spot if the third-country national is already in their territory. The Commission proposal had provided not just such an option but the obligation. This was met with objections by some Member States.163 It is up to Member States to stipulate the requirements and to decide whether even an 3 unlawful resident may submit an application; the Commission Proposal had been 161

Wiesbrock, EL Rev. 35 (2010), p. 455, 467. Peers and others (eds), EU Immigration and Asylum Law Volume 2, p. 147. 163 Council docs. 13574/04, p. 15; 13701/04, p. 15; 11186/04, p. 14. 162

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stricter in this regard.164 It should be kept in mind, however, that under Article 3, some categories of persons are excluded from the scope of the Directive. Then again, the Directive does not prevent Member States to regularise or change a person’s status under national law in order to allow him/her to submit an application for a permit under the Directive.165

Article 15 Procedural safeguards 1. The competent authorities of the Member States shall adopt a decision on the complete application as soon as possible and, where appropriate, provide for accelerated procedures. 2. If the information supplied in support of the application is inadequate, the consideration of the application may be suspended and the competent authorities shall inform the applicant of any further information they need. 3. Any decision rejecting an application for a residence permit shall be notified to the third-country national concerned in accordance with the notification procedures under the relevant national legislation. The notification shall specify the possible redress procedures available and the time limit for taking action. 4. Where an application is rejected, or a residence permit, issued in accordance with this Directive, is withdrawn, the person concerned shall have the right to mount a legal challenge before the authorities of the Member State concerned. Content I. Facilitation of procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Transparency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 7 8

I. Facilitation of procedure 1

Article 15(1) requires Member States to decide on admission ‘as soon as possible’. The original Commission Proposal contained a deadline of 30 days allowing an extension only in ‘exceptional circumstances linked to the complexity of the examination of the application’.166 This was met with criticism by some Member States which were in favour of not mentioning a specific deadline, especially if failure to observe could lead to judicial redress procedures. On the suggestion of France, the deadline was replaced by the wording ‘as soon as possible’.167 The original 30-days-limit may serve as a guideline to determine which time period may as a rule be considered as ‘soon as possible’. The recast proposal states a 30- and a 60-day-limit.168 Contrary to the Commission Proposal, Article 15 as adopted does not state that ‘Member States shall lay down in national legislation the consequences for the authorities concerned of failing to take a decision’169 as soon as possible. Still, Member States may be liable for damages under general principles of EU law. 164

Article 14 Commission Proposal, COM(2004) 178. Commission Proposal, COM(2004) 178, p. 20. 166 Article 15 Commission Proposal, COM(2004) 178. 167 Council doc. 11547/04, p. 14. 168 Article 29 Commission Recast Proposal, COM(2013) 151, p. 55–56. 169 Article 15(1) Commission Proposal, COM(2004) 178; emphasis added. 165

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Article 15(1) also provides for accelerated procedures. The provision is based on the assumption that accelerated procedures are in existence; if they are not, the Member State has to put them into place. However, they must not necessarily be established as a formalized type of procedure, but there should at least be administrative instructions how to determine if acceleration is appropriate and how to proceed if this is the case. Article 15(2) requires a suspension which implies that the applicant may complete his/her application; hence a rejection of an application for the mere reason of inadequate information is excluded. The competent authorities must give precise information as to further information they need and the time period in which such information must be submitted to them. According to Article 15(3), a rejection decision has to be notified to the applicant under the relevant national legislation. The specification of possible redress procedures available and the time limit for taking action must enable the applicant to submit an appeal. Article 15(3) cannot be interpreted as entitling the applicant for a translation of the decision into his/her language. However, the notification must contain in understandable language the appeal possibilities and the consequences of not filing an appeal within the time period indicated for taking action. While the Commission proposal stated an individual right to appeal to the courts of the Member State concerned,170 the adopted text in Article 15(4) only speaks of the right ‘to mount a legal challenge before the authorities of the Member State concerned’.171 The change of wording might be taken to mean that the right to a legal challenge does not necessarily imply a right to judicial remedy provided that there is an administrative authority in charge with an objective and independent examination of a challenge. However, whether an exclusion of a judicial remedy by national law is in accordance with Article 47 CFR and general principles of EU law is questionable: A rejection of an application, which violates individual rights granted under the Directive, must be open to judicial challenge under Article 47 CFR. The same conclusion must be drawn with respect to the jurisprudence of the ECJ, according to which EU law is based on the general principle of effective judicial protection which requires that national tribunals must be able to grant effective protection against a potential violation of individual rights granted by EU law.172 The legal challenge is supposed to take place ‘before the authorities of the Member States concerned’; hence, the appeal might also take place outside the Member State concerned.

2

3

4

5

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II. Fees While the original Commission Proposal contained a rule whereby Member States 7 may charge applicants a fee for the processing of applications for residence permits, which, however, shall not be more than the administrative costs incurred,173 the Directive as adopted does not contain any provision on fees as the vast majority of Member States opposed the provision.174 The right to charge fees, however, was undisputed and it was finally decided to insert it into the Preamble as recital 21.175

170

Article 15(3) Commission Proposal, COM(2004) 178. See on judicial review also above Hailbronner/Thym, Part A, MN 37. 172 ECJ, Factortame, C-213/89, EU:C:1990:257. 173 Article 16 Commission Proposal, COM(2004) 178. 174 Council docs. 8838/04, p. 14 and 11186/04, p. 9. 175 Council doc. 14473/04, p. 6. 171

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The Commission Impact Assessment regarding the recast proposal points out that the ECJ’s jurisprudence clarifies that fees may not be disproportionately high.176

III. Transparency 8

A draft article on transparency, which would have obliged Member States ‘to ensure that the most comprehensive information possible […] is made publicly available, […] on the research organisations, […] with which researchers may conclude a hosting agreement, and on the conditions and procedures for entry and residence on its territory for the purposes of conducting research’177

was deleted and its content moved to recital 10.178

CHAPTER VI FINAL PROVISIONS Article 16 Reports Periodically, and for the first time no later than three years after the entry into force of this Directive, 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.

Article 17 Transposition 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 12 October 2007. When Member States adopt these 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 text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 18 Transitional provision By way of derogation from the provisions set out in Chapter III, Member States shall not be obliged to issue permits in accordance with this Directive in the form of a residence permit for a period of up to two years, after the date referred to in Article 17(1). 176 Commission Impact Assessment, SWD(2013) 77, p. 19 referring to ECJ, Commission v Netherlands, C-508/10, EU:C:2012:243 regarding the Long Term Residents’ Directive 2003/109/EC; see also ECJ, Sahin, C-242/06, EU:C:2009:554, para 71 et seqq. 177 Article 17 Commission Proposal, COM(2004) 178. 178 Council doc. 8838/04, p. 14.

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Article 19 Common Travel Area Nothing in this Directive shall affect the right of Ireland to maintain the Common Travel Area arrangements referred to in the Protocol, annexed by the Treaty of Amsterdam to the Treaty on European Union and the Treaty establishing the European Community, on the application of certain aspects of Article 14 of the Treaty establishing the European Community to the United Kingdom and Ireland.

Article 20 Entry into force This Directive shall enter into force on the twentieth day following its publication in the Official Journal of the European Union.

Article 21 Addressees This Directive is addressed to the Member States in accordance with the Treaty establishing the European Community. Articles 16–21 contain the final provisions. The territorial scope of application of the 1 Directive includes 26 out of the 28 Member States (Ireland opted in by letter of 1 July 2004; the UK and Denmark opted out, in accordance with protocols 4 and 5 annexed to TEU and TEC). The Directive entered into force on 23 November 2005 (Article 20). Under Article 17, Member States had to incorporate the Directive into their national law by 12 October 2007. According to the Commission’s Explanatory Memorandum, ‘Member States must systematically and promptly inform the Commission of the legislative, regulatory and administrative amendments they adopt to this end which must include a reference to the Directive.’179 Either incorporation or communication to the Commission was not achieved by 17 Member States in time; by December 2011, this was remedied.180 According to Article 16, an implementation report and – if appropriate – a proposal of amendments, was to be delivered by the Commission by 23 November 2008 and finally was delivered on 28 September 2011,181 the proposal for amendments on 25 March 2013.182 Article 18 was inserted during the Council debate without further explanation.183 It 2 may be assumed that the same concerns apply as to the same provision in the Students Directive 2004/114/EC.184 179

Commission Proposal, COM(2004) 178, p. 21. Commission Report, COM(2011) 901, p. 2; one Member State was condemned for non-implementation, see ECJ, Commission v Spain, C-523/08, EU:C:2010:73. 181 Commission Report, COM(2011) 901. 182 Commission Recast Proposal, COM(2013) 151. 183 Council doc. 8838/04, p. 15. 184 See Hailbronner/Gies, Students Directive 2004/114/EC, Article 2 MN 20–21. 180

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VII. 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-country nationals Official Journal L 348, 24.12.2008, p. 98–107 Selected Bibliography: Acosta, ‘The Returns Directive: Possible Limits and Interpretation’ in: Karin Zwaan (ed.), The Returns Directive: Central Themes, Problem Issues, and Implementation in Selected Member States (Wolf Legal Publishers, 2011); Acosta, ‘The Returns Directive’, in: Peers/Guild/Acosta/ Groenendijk (eds.), EU Immigration and Asylum Law (Brill, 2012); Baldaccini, ‘The EU Directive on Return, Principles and Protests’, Refugee Survey Quarterly, Vol. 28, No. 4, p. 114–138; Commission Communication on EU Return Policy (COM(2014)199); Return Handbook (Commission Recommandation C(2015)6250 final of 1.10.2015, establishing a common “Return Handbook” to be used by Member States’ competent authorities when carrying out return related tasks); Grabenwarter, ECHR commentary (Beck, 2014); Lutz, The Negotiations on the Return Directive (Wolf Legal Publishers, 2010); Matrix, Evaluation on the application of the Return Directive (final Report, 22 October 2013, available at the European Commissions ‘Smart Regulation’ website); Peers/Guild/Acosta/Groenendijk (eds.), EU Immigration and Asylum Law, Volume 2: EU Immigration Law (Brill, Second Revised Edition 2012); Peers/ Hervey/Kenner/Ward (eds.), The EU Charter of Fundamental Rights: A Commentary, (C.H. Beck, Hart, Nomos, 2014); Pollet, ‘The Negotiations on the Return Directive: Challenges, Outcomes and Lessons learned from an NGO Perspective’, in: Zwaan (ed.), The Returns Directive: Central Themes, Problem Issues, and Implementation in Selected Member States (WLP, 2011), p. 34; Reneman, EU Asylum Procedures and the Right to an Effective Remedy (Hart, 2014); Schieffer, ‘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-country nationals’, in Hailbronner (ed.), EU Immigration and Asylum Law – A Commentary (C.H. Beck, Hart, Nomos 2010).

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 63(3)(b) thereof, Having regard to the proposal from the Commission, Acting in accordance with the procedure laid down in Article 251 of the Treaty(1), Whereas: (1) The Tampere European Council of 15 and 16 October 1999 established a coherent approach in the field of immigration and asylum, dealing together with the creation of a common asylum system, a legal immigration policy and the fight against illegal immigration. (2) The Brussels European Council of 4 and 5 November 2004 called for the establishment of an effective removal and repatriation policy, based on common standards, for persons to be returned in a humane manner and with full respect for their fundamental rights and dignity. (3) On 4 May 2005 the Committee of Ministers of the Council of Europe adopted ‘Twenty guidelines on forced return’. (4) Clear, transparent and fair rules need to be fixed to provide for an effective return policy as a necessary element of a well managed migration policy.

(1) Opinion of the European Parliament of 18 June 2008 (not yet published in the Official Journal) and Council Decision of 9 December 2008.

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(5) This Directive should establish a horizontal set of rules, applicable to all thirdcountry nationals who do not or who no longer fulfil the conditions for entry, stay or residence in a Member State. (6) Member States should ensure that the ending of illegal stay of third-country nationals is carried out through a fair and transparent procedure. According to general principles of EU law, decisions taken under this Directive should be adopted on a case-by-case basis and based on objective criteria, implying that consideration should go beyond the mere fact of an illegal stay. When using standard forms for decisions related to return, namely return decisions and, if issued, entry-ban decisions and decisions on removal, Member States should respect that principle and fully comply with all applicable provisions of this Directive. (7) The need for Community and bilateral readmission agreements with third countries to facilitate the return process is underlined. International cooperation with countries of origin at all stages of the return process is a prerequisite to achieving sustainable return. (8) It is recognised that it is legitimate for Member States to return illegally staying third-country nationals, provided that fair and efficient asylum systems are in place which fully respect the principle of non-refoulement. (9) In accordance with Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status(2), a third-country national who has applied for asylum in a Member State should not be regarded as staying illegally on the territory of that Member State until a negative decision on the application, or a decision ending his or her right of stay as asylum seeker has entered into force. (10) Where there are no reasons to believe that this would undermine the purpose of a return procedure, voluntary return should be preferred over forced return and a period for voluntary departure should be granted. An extension of the period for voluntary departure should be provided for when considered necessary because of the specific circumstances of an individual case. In order to promote voluntary return, Member States should provide for enhanced return assistance and counselling and make best use of the relevant funding possibilities offered under the European Return Fund. (11) A common minimum set of legal safeguards on decisions related to return should be established to guarantee effective protection of the interests of the individuals concerned. The necessary legal aid should be made available to those who lack sufficient resources. Member States should provide in their national legislation for which cases legal aid is to be considered necessary. (12) The situation of third-country nationals who are staying illegally but who cannot yet be removed should be addressed. Their basic conditions of subsistence should be defined according to national legislation. In order to be able to demonstrate their specific situation in the event of administrative controls or checks, such persons should be provided with written confirmation of their situation. Member States should enjoy wide discretion concerning the form and format of the written confirmation and should also be able to include it in decisions related to return adopted under this Directive. (13) The use of coercive measures should be expressly subject to the principles of proportionality and effectiveness with regard to the means used and objectives pursued. Minimum safeguards for the conduct of forced return should be established, taking into account Council Decision 2004/573/EC of 29 April 2004 on the organisa(2)

OJ L 326, 13.12.2005, p. 13.

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tion of joint flights for removals from the territory of two or more Member States, of third-country nationals who are subjects of individual removal orders(3). Member States should be able to rely on various possibilities to monitor forced return. (14) The effects of national return measures should be given a European dimension by establishing an entry ban prohibiting entry into and stay on the territory of all the Member States. The length of the entry ban should be determined with due regard to all relevant circumstances of an individual case and should not normally exceed five years. In this context, particular account should be taken of the fact that the thirdcountry national concerned has already been the subject of more than one return decision or removal order or has entered the territory of a Member State during an entry ban. (15) It should be for the Member States to decide whether or not the review of decisions related to return implies the power for the reviewing authority or body to substitute its own decision related to the return for the earlier decision. (16) The use of detention for the purpose of removal should be limited and subject to the principle of proportionality with regard to the means used and objectives pursued. Detention is justified only to prepare the return or carry out the removal process and if the application of less coercive measures would not be sufficient. (17) Third-country nationals in detention should be treated in a humane and dignified manner with respect for their fundamental rights and in compliance with international and national law. Without prejudice to the initial apprehension by lawenforcement authorities, regulated by national legislation, detention should, as a rule, take place in specialised detention facilities. (18) Member States should have rapid access to information on entry bans issued by other Member States. This information sharing should take place in accordance with Regulation (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)(4). (19) Cooperation between the institutions involved at all levels in the return process and the exchange and promotion of best practices should accompany the implementation of this Directive and provide European added value. (20) Since the objective of this Directive, namely to establish common rules concerning return, removal, use of coercive measures, detention and entry bans, cannot be sufficiently achieved by the Member States and can therefore, by reason of its scale and effects, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary to achieve that objective. (21) Member States should implement this Directive without discrimination on the basis of sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinions, membership of a national minority, property, birth, disability, age or sexual orientation. (22) In line with the 1989 United Nations Convention on the Rights of the Child, the ‘best interests of the child’ should be a primary consideration of Member States when implementing this Directive. In line with the European Convention for the Protection of Human Rights and Fundamental Freedoms, respect for family life should be a primary consideration of Member States when implementing this Directive. (3) (4)

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(23) Application of this Directive is without prejudice to the obligations resulting from the Geneva Convention relating to the Status of Refugees of 28 July 1951, as amended by the New York Protocol of 31 January 1967. (24) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. (25) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application. Given that this Directive builds – to the extent that it applies to third-country nationals who do not fulfil or who no longer fulfil the conditions of entry in accordance with the Schengen Borders Code(5) – upon the Schengen acquis under the provisions of Title IV of Part Three of the Treaty establishing the European Community, Denmark shall, in accordance with Article 5 of the said Protocol, decide, within a period of six months after the adoption of this Directive, whether it will implement it in its national law. (26) To the extent that it applies to third-country nationals who do not fulfil or who no longer fulfil the conditions of entry in accordance with the Schengen Borders Code, this Directive constitutes a development of provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis(6); moreover, in accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and to the Treaty establishing the European Community, and without prejudice to Article 4 of the said Protocol, the United Kingdom is not taking part in the adoption of this Directive and is therefore not bound by it in its entirety or subject to its application. (27) To the extent that it applies to third-country nationals who do not fulfil or who no longer fulfil the conditions of entry in accordance with the Schengen Borders Code, this Directive constitutes a development of provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/ EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis(7); moreover, in accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and to the Treaty establishing the European Community, and without prejudice to Article 4 of the said Protocol, Ireland is not taking part in the adoption of this Directive and is therefore not bound by it in its entirety or subject to its application. (28) As regards Iceland and Norway, this Directive constitutes – to the extent that it applies to third-country nationals who do not fulfil or who no longer fulfil the conditions of entry in accordance with the Schengen Borders Code – a development of provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, (5) Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ L 105, 13.4.2006, p. 1). (6) OJ L 131, 1.6.2000, p. 43. (7) OJ L 64, 7.3.2002, p. 20.

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application and development of the Schengen acquis, which fall within the area referred to in Article 1, point C, of Council Decision 1999/437/EC(8) on certain arrangements for the application of that Agreement. (29) As regards Switzerland, this Directive constitutes – to the extent that it applies to third-country nationals who do not fulfil or who no longer fulfil the conditions of entry in accordance with the Schengen Borders Code – a development of provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, which fall within the area referred to in Article 1, point C, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC(9) on the conclusion, on behalf of the European Community, of that Agreement. (30) As regards Liechtenstein, this Directive constitutes – to the extent that it applies to third-country nationals who do not fulfil or who no longer fulfil the conditions of entry in accordance with the Schengen Borders Code – a development of provisions of the Schengen acquis within the meaning of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, which fall within the area referred to in Article 1, point C, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/261/EC(10) on the signature, on behalf of the European Community, and on the provisional application of, certain provisions of that Protocol, HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I GENERAL PROVISIONS Article 1 Subject matter This Directive sets out common standards and procedures to be applied in Member States for returning illegally staying third-country nationals, in accordance with fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations. Content I. General remarks and structure of the Directive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Preparatory stages (2001–2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Drafting and submission of Commission proposal (2004–2005) . . . . . . 3. Negotiation phase (2006–2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Impact of EP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8)

OJ L 176, 10.7.1999, p. 31. OJ L 53, 27.2.2008, p. 1. (10) OJ L 83, 26.3.2008, p. 3. (9)

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III. Subject matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 IV. Application of the Directive (2008–2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 V. Overview – ECJ Case law related to Return Directive . . . . . . . . . . . . . . . . . . . . . . 24

I. General remarks and structure of the Directive This introductory provision may serve as a means of interpretation for the following 1 provisions. Compared to other migration directives, the text of the Return Directive is relatively concise and consists of 23 Articles, structured in five chapters: I – general provisions; II – termination of illegal stay; III – procedural safeguards; IV – detention for the purpose of removal and V – final provisions.

II. Drafting history 1. Preparatory stages (2001–2004) In its Communication of 15 November 2001 on a Common Policy on Illegal 2 Immigration1 the Commission pointed out that return policy is an integral and crucial part of the fight against illegal immigration. The 10 April 2002 Green Paper on a Community Return Policy2 elaborated in more detail on the issue of return. It highlighted the need for approximation and improved co-operation on return among Member States and put on the table a number of possible elements for a future legislative proposal in order to trigger a broad debate among relevant stakeholders. The ensuing 14 October 2002 Commission Communication on a Community Return Policy on Illegal Residents3 sketched a programme for further action. Based on this Communication, the Council adopted its Return Action Programme4 in which it called for improved operational co-operation among Member States, intensified co-operation with third countries and the establishment of common standards with the aim of facilitating operational return. ‘The Hague Programme’, adopted by the 4/5 November 2004 Brussels European Council, expressly endorsed this request and asked for the establishment of common standards for persons to be returned in a humane manner and with full respect for their human rights and dignity. It called for the submission of a Commission proposal in early 2005.

2. Drafting and submission of Commission proposal (2004–2005) On 22 December 2004 Council took the decision5 (2004/927/EC) to ‘switch’ the 3 decision-making procedure for measures referred to in Article 63(3)(b) TEC (now Article 79(2)(c) TFEU) (‘illegal immigration and illegal residence, including repatriation of illegal residents’) from consultation procedure (requiring unanimity in Council and giving a purely advisory role to the EP) to co-decision (requiring qualified majority in Council and approval by the EP). The importance of this procedural change for the negotiations of the Return Directive cannot be underestimated: Under the ‘old’ consultation procedure it would have been relatively easy for Member States to agree 1

Commission Communication, COM(2001) 672. Commission Communication, COM(2002) 175. 3 Commission Communication, COM(2002) 564. 4 Council doc. 14673/02 of 25 November 2002. 5 Council Decision 2004/927/EC providing for certain areas covered by Title IV of Part Three of the Treaty establishing the European Community to be governed by the procedure laid down in Article 251 of that Treaty (OJ 2004 L 396/45) 2

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on a watered down text with very limited added value. Under co-decision this was no longer possible. The switch to co-decision made it on the one hand more difficult to achieve an agreement. On the other hand it allowed for qualitative improvements of the text which would not have been possible under the previous consultation procedure6. 4 Before the adoption of the Return Directive, Community legislation in the field of return had been limited to certain specific issues chosen by Member States under their right of co-initiative, such as the organisation of joint flights for removal;7 assistance in cases of transit for removal by air8 and the possibility of mutual recognition of expulsion decisions.9 By contrast, the Return Directive was designed to be a horizontal piece of legislation harmonising systematically and inclusively the standards in Member States on return, removal, entry-ban, detention etc. The aims of the Commission proposal, which was adopted on 1 September 2005,10 were summarised by the Commission as follows: 1. Establishing a rule that illegal stay should be ended through a fair and transparent procedure. 2. Promoting the principle of voluntary return by establishing a general rule that a ‘period for departure’ should normally be granted. 3. Establishing – as a general principle – a harmonised two-step procedure: involving a return decision as a first step and – if necessary – the issuing of a removal order as a second step, thus aligning to a certain extent the currently divergent Member States systems. 4. Addressing the situation of persons who are staying illegally but who cannot (as yet) be removed. 5. Providing for a minimum set of procedural safeguards. 6. Limiting the use of coercive measures, binding it to the principle of proportionality and establishing minimum safeguards for the conduct of forced return. 7. Giving a European dimension to the effects of national return measures by establishing a re-entry ban valid throughout the EU. 8. Rewarding good compliance (including an option to withdraw any re-entry ban) and penalising noncompliance (including an option to extend any re-entry ban). 9. Protecting the interests of the state in cases of serious threat to national and public security (including an option to extend any re-entry ban). 10. Limiting the use of temporary custody and binding it to the principle of proportionality. 11. Establishing minimum safeguards for the conduct of temporary custody. 12. Addressing situations where a third-country national who is the subject of a removal order or return decision issued by a Member State is apprehended in the territory of another Member State

5

Comparing this announcement with the final text of the Directive after nearly three years of discussions, it results that most of the key features could be maintained in substance (sometimes with certain cuts, in particular as regards points 3 and 4) and that only one objective, namely point 12 (the establishment of common rules on apprehension in other Member States including a ‘Dublin-like’ system for illegally staying persons) could not be achieved.

3. Negotiation phase (2006–2008) 6

In general, the Commission proposal was criticised by Council as being too protection and human rights oriented. The main preoccupation expressed by Member States was the fear that the directive would make return more difficult in practice. Member States asked, in particular, for the following changes: 6

Lutz, The Negotiations on the Return Directive, p. 11–25. Decision 2004/573/EC (OJ 2004 L 261/28) on joint flights for removal. 8 Directive 2003/110/EC (OJ 2003 L 321/26) on assistance in cases of transit for removal by air. 9 Directive 2001/40/EC (OJ 2001 L 149/34) on mutual recognition of expulsion decisions. 10 Commission Proposal COM(2005) 391. This proposal was accompanied by an Impact Assessment (SEC(2005) 1057) and a Commission Staff Working Document (SEC(2005) 1175), containing detailed comments. 7

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– Abandoning the allegedly ‘over-bureaucratic’ requirement of a two-step procedure (return decision and removal order in two subsequent and different steps); – Excluding ‘persons rejected at the border’ from the scope of the proposal; – Excluding persons who never had a right to stay (‘illegal entrants’) entirely from the scope of the proposal or from some of the safeguards provided in it; – Excluding persons falling under the scope of bilateral or EU readmission agreements from the scope of the proposal; – Excluding persons who are removed following a criminal judgment from the scope of the Directive; – Lowering the level of protection with regard to legal remedies; – Lowering the level of protection afforded by the provisions dealing with detention; – Deleting entirely the proposed chapter V ‘apprehension in other Member States’. Germany, which took over the Council Presidency in January 2007, had been particularly sceptical vis-a`-vis the proposal from the beginning. After taking over the Council Presidency, Germany immediately suspended the discussion at working group level and formulated some general questions for political discussion at SCIFA11 with a view of obtaining further steer for discussion. The German position paper12 for SCIFA followed a very minimalist approach (proposing no or only minimum harmonisation on most of the issues). Progress in the EP was also slow. It took two years until the competent Civil Liberties Committee (LIBE) voted a first draft report. The rapporteur was Manfred Weber (PPEDE). Those MEPs which tried to follow a pragmatic approach were faced with opposition by those of their fellow MEPs who defended more ambitious protection oriented positions. This led to a situation in which discussion within the EP drifted diametrically away from discussion at Council level and focused on issues which were known ‘no-goes’ for Council, such as: – An absolute prohibition to remove minors; – Suspensive effect of appeals in all cases; – A prohibition to return persons to countries of transit; – An absolute prohibition to remove persons who can get better medical treatment in the EU than in their home countries. Interaction between the two institutions: Both institutions worked for more than two years in isolation without taking into account the position of the other side. In spring 2007, following the endorsement by SCIFA of the German Presidency ‘Policy Guidelines’ (see above MN 7), the proposal was entirely blocked. Several coinciding events lead, however, to a new momentum: 1. Linkage with the Return Fund: A political linkage was made by the EP between the Return Directive and the Return Fund at the occasion of the adoption of the Return Fund13 in December 2006. In the course of spring 2007 it became clear that the EP was making this ‘threat’ serious by planning not to release the budget for the first year of the European Return Fund (2008). 2. In the context of the final negotiations of the Visa information System (VIS) Regulation in spring 2007, the EP exercised pressure on Council to invest more energy and political will in finding an agreement on the Return Directive. 11 The SCIFA (Strategic Committee on Immigration, Frontiers and Asylum) is a Directors-level Council Committee, positioned between working group level on the one hand and JHA advisors and COREPER level at the other hand. 12 Council doc. 6624/07 of 28 February 2008. 13 Decision No 575/2007/EC (OJ 2007 L 144/45) establishing the European Return Fund for the period 2008 to 2013.

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3. The scheduling of a vote in the EPs Civil Liberties committee (LIBE) on a draft report on the Return Directive. This report14 was supported quasi-unanimously by all major political groups in LIBE. 4. The role of the Portuguese Council Presidency, which made adoption of the Directive a top priority of its agenda and quickly managed to produce a compromise text15 which gained the support of at least a qualified majority of Member States on the most important issues. 11 This paved the way for a series of technical trilogue meetings, covering the open issues and looking for common ground. A compromise text was agreed between the Council Presidency and the EP rapporteur and endorsed by the 5 June 2008 JHA Council. The EP Plenary adopted it on 18 June 2008, following a vital debate in the Plenary where finally the argument, provided by the MEPs of PPE, ALDE and also partly PSE, convinced that the Directive will in practice improve the situation in several Member States. The compromise solutions found on the numerous contentious issues have often been inspired by the Council of Europe’s ‘Twenty Guidelines on Forced Returns’ from 2005.16

4. Impact of EP 12

Under the ‘old’ consultation procedure it would have been relatively easy for Member States to agree on a watered down text of a Directive with very limited added value. Following the switch to co-decision this was not possible anymore, because the EP was not willing to endorse such a minimalist approach. The negotiations of the Return Directive provide for evidence that the switch to ‘co-decision’ allowed for qualitative improvements which would not have been possible under the previous consultation procedure. This relates in particular to the provisions dealing with basic guarantees in border cases – Article 4(4); basic principles (non-refoulement, best interests of the child, family life, state of health) – Article 5; the right to a minimum period for voluntary departure – Article 7; forced return monitoring – Article 8(6); assistance for unaccompanied minors – Article 10; free legal aid – Article 13(4); minimum conditions of stay of non-removable returnees – Article 14; detention conditions – Articles 16 and 17. All these provisions would not exist or would have been watered down, if the Directive had been adopted under the consultation procedure.

5. Adoption 13

The final phase of negotiation and adoption in spring and summer 2008 was accompanied by a tide of protest from NGOs as well as from a number of Latin American countries, strongly criticising the Directive. The criticism focused mainly on the allegedly over-repressive character of the Directive and on the maximum period of detention of 18 months, qualifying it as ‘directive of shame’.17 This tide of criticism also impressed politicians throughout Europe and provoked strong statements in either direction.

14

European Parliament doc. A6-0339/2007 of 20 September 2007. Council doc. 15566/07 of 7 December 2007. 16 Council of Europe doc. CM(2005)40 of 9 May 2005. Although not being an EU instrument, these guidelines have been very useful during the final negotiations since all Member States had already accepted them politically at Ministerial level in the framework of the Council of Europe. Given that recital 3 of the Directive explicitly refers to these guidelines, they may be considered as a complementary tool for the interpretation of the Directive. This was expressly recognised by the ECJ in its judgment of 28 April 2011, El Dridi, C-61/11, EU:C:2011:268, para 43. 17 Lutz, The Negotiations on the Return Directive, p. 73–80. 15

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The Council of 9 December 2008 formally approved all the amendments contained in 14 the EPs opinion – with the support of 23 Member States – as an ‘A-point’ without discussion. UK, Ireland and Denmark did not take part in the adoption of the Directive in accordance with the respective Protocols annexed to the Treaties. Belgium abstained from the vote. Signature by the Presidents of the EP and of the Council took place in Strasbourg on 16 December 2008 and the Directive was published in the Official Journal L 348 of 24 December 2008. It entered into force on 13.1.2009.

III. Subject matter The Directive sets out ‘common standards’ and not merely minimum standards. More favourable national provisions must not undermine the harmonising value of these common standards (see below Article 4 MN 6). The Directive applies to any ‘illegally staying third country national’, as defined in Article 3(1) and (2), notwithstanding the reasons for illegal stay. The Directive starts applying at the moment at which Member States become aware of the illegal stay of a third country national and continues to apply until the illegal stay of this person is ended, either by successful return or by granting a right to stay. The fact that return or removal cannot be carried out for practical reasons does not imply that the Directive stops applying. As long as an illegally staying third country national is present in a Member State, he/she remains covered by the safeguards of the Directive, notably its Article 5 (respect of principle of non-refoulement), its Article 9 (postponement of removal), its Article 14 (safeguards pending return) and its Article 15(6) (right not to be detained for return related purposes for more than 18 months). The situation of ‘non-removable returnees’ is discussed in more detail below (see Article 14 MN 12–14). The Directive lays down ‘standards and procedures for return’. This term must be interpreted broadly in conjunction with the substantive Articles of the Directive, which cover a large variety of issues related to return, including the procedures to be followed by Member States from the apprehension of an irregular migrant until his/her return or removal to a third country. The Directive also covers the rights enjoyed by returnees during the different phases of a return procedure (during a period for voluntary departure, during detention, during postponed removal) as well as the rights of third parties (relevant national, international and non-governmental organisations and bodies) to monitor return related activities and facilities. The Directive applies ‘in Member States’. It is a ‘hybrid legal instrument’ which constitutes both a development of the Schengen acquis and a regular piece of illegal immigration legislation capable of being opted into by UK and Ireland. In accordance with the Protocols on their respective positions, the United Kingdom and Ireland did not take part in the adoption of the Directive and are not bound by it or subject to its implementation. Denmark did not take part in the adoption of the Directive and is not bound by it under Union law, but decided to implement the Directive as a measure building upon the Schengen acquis in its national law. The associated Schengen countries (Norway, Iceland, Switzerland and Liechtenstein under their Schengen Association Agreements) took part in the decision-making process and are bound by the Directive. It results that in the context of the Return Directive the term ‘Member States’ covers 30 States: all EU Member States except United Kingdom and Ireland; plus Norway, Iceland, Switzerland and Liechtenstein. The express emphasis on ‘fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations’ underlines that compliance with fundamental rights is a cardinal principle for the Lutz

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interpretation of the Return Directive. The Directive explicitly mentions a number of particularly important instruments which shall be taken into due account when implementing it: The 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 5(b), recital 22); the 1989 UN Convention on the Rights of the Child, and in particular the principle of the ‘best interests of the child’ (Article 5(a); recital 22); the Geneva Convention (recital 23). The fundamental rights and principles recognized in the CFR are referred to in recital 24. 20 Issues not covered and remaining gaps: Comparing the 2005 Commission proposal with the suggestions contained in the 2002 Council Return Action Programme, it can be noted that the Commission did not address two important issues highlighted by the Council in this Action Programme, namely the harmonisation of preconditions for the ending of legal stay (such as harmonised public order reasons which may lead to expulsion decisions in Member States) and a binding system for mutual recognition of return decisions.18

IV. Application of the Directive (2008–2015) On 28 March 2014, the Commission published its first application report,19 which drew an overall positive assessment of the transposition and the effects of the Directive. According to this report the Directive has positively influenced national law and practice regarding voluntary departure and has been a driver for change in forced return monitoring. It contributed to a convergence – and overall to a reduction – of maximum detention periods across the EU and there has also been consistent movement towards a wider implementation of alternatives to detention across Member States. It also limited Member States’ ability to criminalise mere irregular stay, and its procedural safeguards have contributed to more legal security. According to the Commission, the concern, expressed by some Member States at the time of adoption of the Directive, that its protective provisions would undermine the efficiency of return procedures has not materialised. According to the Commission, experience would confirm that the procedures foreseen in the Directive allow for determined action and the main reasons for non-return relate to practical problems in the identification of returnees and in obtaining the necessary documentation from non-EU authorities. 22 The application report was based – amongst others – on a study carried out by an external contractor (Matrix) for the Commission. The text of this study with detailed information on the transposition and application of the key provisions of the Directive in Member States is publicly available at the European Commission’s Smart Regulation website.20 23 In its first application report the Commission announced the adoption of a ‘Return Handbook’, containing common guidelines, best practice and recommendations to be used by Member States’ competent authorities when carrying out return-related activities and as a point of reference for return-related Schengen evaluations. A first draft version of this handbook was made publicly accessible21 in October 2014. It bases itself to a large extent on the work conducted by Member States and the Commission 21

18 For a detailed analysis of the underlying reasons and arguments used by the Commission see: Baldaccini, ‘The EU Directive on Return, Principles and Protests’, Refugee Survey Quarterly 28 (2010), p. 114, 136 and Lutz, The Negotiations on the Return Directive, p. 13–17. 19 Commission Communication COM(2014) 199. 20 Matrix, Evaluation on the application of the Return Directive. 21 Available at Register of Commission Expert Groups: http://ec.europa.eu/transparency/regexpert/ index.cfm in section: Contact Group – Return Directive (E02232); (last accessed March 2015).

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within the ‘Contact Committee Return Directive’ in the years 2009–2014 and regroups in a systematic form the findings achieved within this forum, complemented by supplementary guidance on newly arising issues. The final version of the Return Handbook was adopted by the Commission on 1.10.2015 in the form of a Commission Recommendation (C(2015)6250 final).

V. Overview – ECJ Case law related to Return Directive Between 2009 and 2015, national Courts submitted an important number of 24 preliminary references related to the interpretation of the Return Directive to the ECJ. The questions related to varying issues such as the relation between Return Directive and the asylum acquis; entry bans; voluntary departure and the right to be heard (Article 41 CFR) in return and detention related procedures. A significant number of preliminary questions dealt with an issue not directly 25 addressed by the Return Directive, namely the possibility for Member States to criminalise irregular entry and/or stay under national law. Whilst neither the Return Directive nor any other EU legal instrument prevent Member States from considering irregular entry and/or stay as a criminal offence under their national criminal law, several judgments have limited and constrained Member States’ ability to keep returnees in prison (or apply other types of criminal sanctions) as a consequence of mere illegal stay. In particular, in case C-61/11 (El Dridi) the ECJ found that the Return Directive precludes national rules criminalising irregular stay in so far as such rules undermine the effectiveness of the Return Directive.22 In this respect, the ECJ found that imposing a prison term on an irregularly staying third-country national who has committed no other offence than not complying with an order to leave the national territory is contrary to the Directive. A judgment in a similar case C-329/11 (Achughbabian) confirmed the findings of the El Dridi judgment and found that national law sanctioning mere irregular stay with a threat of criminal law imprisonment was incompatible with the Return Directive.23 The judgment in case C-430/11 (Sagor) confirmed that the criminal law sanction of a financial fine which may be replaced by an expulsion order can be applied, provided that the expulsion procedure respects all relevant procedural safeguards of the Return Directive, and that the criminal law sanction of home detention can be applied only insofar as there are guarantees in place to make sure that its conduct does not delay return.24 In its judgment in case C-290/14 (Celaj), the ECJ clarified that the Return Directive does not, in Principle, preclude legislation of a Member State which provides for the imposition of a prison sentence on an illegally staying third-country national who, after having been returned to his country of origin in the context of an earlier return procedure, unlawfully re-enters the territory of that State in breach of an entry ban. Several Member States had to change their legislation as a consequence of this jurisprudence.25 List of cases (with keywords and name of Member State concerned in brackets): 26 – ECJ, Judgment of 30 November 2009, Kadzoev, C-357/09, EU:C:2009:741 (detention – reasons for prolongation; link to asylum related detention – BG) – ECJ, Judgment of 28 April 2011, El Dridi, C-61/11, EU:C:2011:268 (criminalisation – penalisation of illegal stay by imprisonment – IT)

22

ECJ, El Dridi, C-61/11, EU:C:2011:268. ECJ, Achughbabian, C-329/11, EU:C:2011:807. 24 ECJ, Sagor, C-430/11, EU:C:2012:777. 25 Commission Communication COM(2014) 199, p. 24–25. 23

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– ECJ, Judgment of 6 December 2011, Achughbabian, C-329/11, EU:C:2011:807 (criminalisation – penalisation of illegal stay by imprisonment – FR) – ECJ, Judgment of 6 December 2012, Sagor, C-430/11, EU:C:2012:777 (criminalisation – penalisation of illegal stay by fine; expulsion order; house arrest – IT) – ECJ, Order of 21 March 2013, Mbaye, C-522/11, EU:C:2013:190 (criminalisation of illegal stay – IT) – ECJ, Judgment of 30 May 2013, Arslan, C-534/11, EU:C:2013:343 (return vs asylum related detention – CZ) – ECJ, Judgment of 10 September 2013, G. and R., C-383/13, EU:C:2013:533 (right to be heard before prolonging detention – NL) – ECJ, Judgment of 19 September 2013, Filev and Osmani, C-297/12, EU:C:2013:569 (entry bans – need to determine ex-officio length; historic entry bans – DE) – ECJ, Judgment of 5 June 2014, Mahdi, C-146/14 PPU, EU:C:2014:1320 (detention – reasons for prolongation and judicial supervision – BG) – ECJ, Judgment of 3 July 2014, Da Silva, C-189/13, EU:C:2014:2043 (criminalisation – illegal entry – FR) – ECJ, Judgment of 17 July 2014, Bero, C-473/13, and Bouzalmate, C-514/13, EU:C:2014:2095 (detention conditions – obligation to provide for specialised facilities – DE) – ECJ, Judgment of 17 July 2014, Pham, C-474/13, EU:C:2014:2096 (detention conditions – not at disposal of detainee – DE) – ECJ, Judgment of 6 November 2014, Mukarubega (C-166/13) ECLI:EU:C:2014:2336 (right to be heard before issuing a return decision – FR) – ECJ, Judgment of 11 December 2014, Boudjlida, C-249/13, EU:C:2014:2431 (right to be heard before issuing a return decision – FR) – ECJ, Judgment of 18 December 2014, Abdida, C-562/13, EU:C:2014:2453 (rights pending postponed return – BE) – ECJ, Judgment of 11 June 2015, Zh. and O., C-554/13, ECLI:EU:C:2015:377 (criteria for determining voluntary departure period – NL) – ECJ, Judgment of 23 April 2015, Zaizoune, C-38/14, ECLI:EU:C:2015:260 (obligation to issue return decision – ES) – ECJ, Judgment of 1 October 2015, Skerdjan Celaj, C-290/14, ECLI:EU:C2015:640 (criminalisation of non-compliance with an entry ban – IT) – ECJ, Case Affum, C-47/15, pending (criminalisation of illegal entry – FR)

Article 2 Scope 1. This Directive applies to third-country nationals staying illegally on the territory of a Member State. 2. Member States may decide not to apply this Directive to third-country nationals who: (a) are subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code, or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State; (b) are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, according to national law, or who are the subject of extradition procedures. 3. This Directive shall not apply to persons enjoying the Community right of free movement as defined in Article 2(5) of the Schengen Borders Code. Content I. II. III. IV.

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General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of the Directive – Article 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Possible exclusions from the scope of the Directive – Article 2(2) . . . . . . .

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1. Article 2(2)(a) – border and border-like cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code (border cases) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State (border-like cases) . . . . . . . . . . . . . . . c) Not subsequently obtained an authorisation or a right to stay in that Member State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Criminal law and extradition cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Persons enjoying the right of free movement under Union law – Article 2(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9 11 12 14 15 18

I. General remarks This Article is a key provision as it defines the personal scope of the Directive. 1 Article 2(1) establishes the general rule to which Article 2(2) provides important exceptions. The derogation of Article 2(2)(a) (border and border-like cases) is closely related to Article 4(4), which provides for a set of minimum safeguards in those cases in which Member States choose to use this derogation.

II. Drafting history Article 2 had been significantly modified during the negotiation process.26 In parti- 2 cular the extent to which the Directive should cover third-country nationals who were apprehended at or near Member States’ borders was one of the most controversial issues. The EP wanted to keep the scope of the derogation as narrow as possible and to have clear definitions which would help to avoid extensive interpretations by Member States. Council insisted on excluding not only persons in transit zones, but also persons apprehended in connection with illegal border crossing (the Council proposal27 was: ‘apprehended in circumstances where there are reasons to believe that they have illegally entered within a period of no more than 72 hours the territory of the Member States’). The compromise arrived at in the end was to define ‘border cases’ by reference to Article 13 Schengen Borders Code (refusal of entry) and to use the wording of Article 8(1) of the former Eurodac Regulation (EC) No 2725/2000 for defining ‘border-like’ cases. The wording taken from Eurodac: ‘apprehended in connection with the irregular crossing by land, sea or air of the external border of a Member State’ was clearly much narrower than the text proposed by Council. It must be acknowledged, however, that it still leaves some margin of interpretation.

III. Scope of the Directive – Article 2(1) The scope of the Directive is broad and covers any third-country national staying 3 illegally on the territory of a Member State. In the Return Directive context, the following States are to be considered as Member States: All EU Member States (except UK and Ireland) plus Switzerland, Norway, Iceland and Liechtenstein (see above Article 1 MN 18). The terms ‘third-country national’ and ‘illegal stay’ are defined in Article 3(1) and (2). The reason for the illegality of the stay can be manifold: expiry of a visa, expiry or withdrawal of a residence permit, negative final decision on an asylum 26 27

Lutz, The Negotiations on the Return Directive, p. 29–33. Council doc. 15566/07 of 7 December 2007; see Article 2(2)(c) of Presidency proposal.

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application, illegal entry, etc. Due to the broad formulation of Article 2(1), the Directive may also cover situations where an application for a residence permit is pending and has not yet been decided upon. Applicants for international protection are not covered by the Directive for as long as they enjoy a right to stay in a Member State. This is expressly reconfirmed by recital 9 (see below Article 3 MN 8). 4 The notion ‘staying on the territory’ follows the concept of physical presence on the territory of a Member State. This approach implies that in principle any person who is apprehended at a moment when he/she has already reached the territory of a Member State and who does not enjoy a right to stay in the Member State, is covered by the scope of the Directive and its procedural safeguards. Legal fictions under national law which consider persons who are physically staying in specially designated parts of Member State territory (e. g. in transit areas or certain border areas) as not ‘staying in the territory’ are irrelevant in this context, since they would undermine the harmonious application of the Directive. Member States may, however, decide to apply the derogation foreseen in Article 2(2)(a) in certain border related constellations. Example: Thirdcountry nationals who are refused entry in a Schengen airport transit zone or who are apprehended whilst climbing a border fence situated on Member State territory are already physically present on the territory of a Member State and thus fall under the scope of the Directive unless Member States make use of the derogation of Article 2(2)(a). In the latter case, only Article 4(4) applies.

IV. Possible exclusions from the scope of the Directive – Article 2(2) Member States may decide not to apply the Directive to certain categories of illegally staying third-country nationals in accordance with Article 2(2)(a) or (b). The decision of a Member State to make use of the derogation and not to apply the Directive to ‘border cases’ or ‘criminal law cases’ must be stated in national implementing legislation, otherwise it can develop no legal effects. If a Member State hasn’t properly published its decision to make use of the derogation in its legislation, the derogation cannot be used by that Member State as a justification for not applying the Directive subsequently in individual cases. It can be argued whether an express statement to make use of the derogation in the national legislation is necessary or whether an implicit or indirect statement is sufficient. This question is of high practical relevance, since most Member States make use of the derogations,28 without always specifying this sufficiently clearly in their implementing legislation. 6 Nothing prevents Member States from making partial use of the derogations, provided this is made clear in the implementing national legislation: Member States may limit the use of the derogations to more narrowly defined categories of persons (e. g.: only to persons apprehended in connection with irregular border crossing and not to persons refused entry at the border) or may decide not to apply some Articles of the Directive instead of not applying the Directive as a whole. 7 Member States can decide to make use of the derogation at a later stage. This must, however, not have disadvantageous consequences with regard to those persons who were already able to avail themselves of the effects of the Directive.29 8 The form, content and legal remedies available against return related decisions issued to third-country nationals excluded from the scope of application of the Directive under Article 2(2)(a) and (b) are covered by national law. 5

28 29

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1. Article 2(2)(a) – border and border-like cases Persons who have been refused entry and who are present in a transit zone or in a 9 border area of a State are sometimes subject to special rules: by virtue of a ‘legal fiction’ these persons are not considered to be staying in the State territory and different rules are applied. The Return Directive does not follow this approach and it considers any third-country national physically staying on Member State territory as covered by its scope. Member States are, however, free (but not obliged) to decide not to apply the Directive in certain border or border like constellations. Article 2(2)(a) only refers to the crossing of external borders. The temporary reintroduction of internal border control does not re-convert internal borders to external borders.30 It is therefore irrelevant for the scope of application of the Directive. The reasons for excluding a third-country national from the Directive’s scope of 10 application according to Article 2(2)(a) are distinct from the cases mentioned in Article 12(3) (simplified return procedure). The latter grants Member States the right not to apply certain form requirements when issuing return decisions to third-country nationals who have illegally entered their territories. ‘Illegal entry’ (the term used in Article 12(3) is not synonymous with the terms used in Article 2(2)(a) and the procedural simplifications offered by Article 12(3) are not limited to cases covered by Article 2(2)(a). For instance, third-country nationals who have been apprehended half a year after their illegal entry do not fall anymore under the exemption of Article 2(2)(a) but may be subject to a simplified return decision in accordance with Article 12(3). a) Subject to a refusal of entry in accordance with Article 13 of the Schengen 11 Borders Code (border cases). This exemption is clear and leaves little margin for interpretation. It directly refers to third-country nationals who have been refused entry in accordance with Article 13 of the Schengen Borders Code. Refusals of entry according to Article 13 Schengen Borders Code (SBC) cover anybody who does not fulfil the entry conditions in accordance with Article 5(1) SBC. Since refusal of entry decisions under the SBC are issued at border crossing points only, this exemption does not apply to persons crossing the border outside border crossing points. b) Apprehended or intercepted by the competent authorities in connection with 12 the irregular crossing by land, sea or air of the external border of a Member State (border-like cases). This exemption leaves a significant margin for interpretation. As an exception to a general rule it needs to be interpreted narrowly. It is beyond doubt that it includes all cases where third-county nationals have been apprehended right at the border (‘caught in the act’). It is much less clear what other cases might be covered. To avoid excessively broad interpretations and ensure a minimum of legal certainty, a teleological approach suggests that a verifiable direct link between the act of irregular border crossing and the subsequent apprehension or interception should be required. This would avoid excluding cases from the Directive’s scope of application which are solely based on time-limits (‘within 48/72 hours’) or geographical criteria (‘within a border region’) as such criteria alone cannot ensure that exclusions are limited to apprehensions connected to an irregular border crossing. It may be legitimate31 to qualify the following categories of persons as covered by the 13 definition, because there is still such direct connection to the act of irregular border 30 See Commission Report COM(2010) 554 on the application of Title III (Internal Borders) of the Schengen Borders Code, p. 9. 31 Commission Return Handbook, p. 15.

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crossing: persons arriving irregularly by boat who are apprehended at the beach shortly after arrival; persons arrested by the police after having climbed a border fence and irregular entrants who are leaving the train/bus which brought them directly into the territory of a Member State (without previous stopover in Member State territory). The following categories of persons may not be considered as covered by the definition, because there is no more direct connection to the act of irregular border crossing: irregular entrants who are apprehended within Member State territory two days after irregular entry; irregular migrants apprehended in a border region (unless there is still a direct connection to the act of irregular border crossing); an irregular migrant leaving a bus coming from a third country, if the bus had already made several stops in EU territory and irregular migrants crossing an internal border (NB: Both the wording of Article 2(2)(a) and Article 13 SBC clearly refer to ‘external borders’). 14

c) Not subsequently obtained an authorisation or a right to stay in that Member State. The derogation of Article 2(2)(a) can only be applied with regard to third country nationals who have not subsequently obtained an authorisation or a right to stay in that Member State. Examples:32 Irregular entrants who had been apprehended at the external border and subsequently obtained a right to stay as applicants for international protection must not be excluded from the scope of the Directive as ‘border case’, even if – after final rejection of the asylum application – they become again ‘illegally staying’. A third-country national who had been subject of a refusal of entry in the airport transit zone and who was subsequently transferred to a hospital for medical reasons under a short-term national permit covering the period of hospitalisation must not be excluded from the scope of the Directive as ‘border case’ following the expiration of the national short-term permit.

2. Criminal law and extradition cases The possibility for Member States to exclude the category of third-country nationals referred to in Article 2(2)(b) was not contained in the Commission proposal. It had been inserted during negotiations in Council in order to clarify that the Directive does not harmonize issues of criminal law or extradition. The provision enables Member States to keep discretion as to extradition procedures and expulsions for criminal law reasons, either as part of the penal sanction or as a consequence of a penal sanction. 16 The criminal law cases envisaged by this provision are those typically considered as crime in the national legal orders of Member States. In Filev and Osmani33 the ECJ expressly clarified that the crime of drug trafficking and offences against the provisions of national law on narcotics could be one of the cases to which the derogation is applicable. Minor migration related criminal law infringements, such as mere irregular entry or stay cannot justify the use of this derogation.34 17 Extradition procedures are not necessarily related to return procedures. Extradition is defined35 as ‘surrendering persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order’. There may, however, be overlaps and this derogation aims at making clear that Member States have the option not to apply the procedural safeguards contained in the Directive when carrying out return in the context of extradition procedures. 15

32

Commission Return Handbook, p. 16. ECJ, Filev and Osmani, C-297/12, EU:C:2013:569, paras 50–51. 34 ECJ, Achughbabian, C-329/11, EU:C:2011:807, para 41. 35 See Article 1 of the 1957 Council of Europe ‘European Convention on Extradition’, CETS No.: 024. 33

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V. Persons enjoying the right of free movement under Union law – Article 2(3) Although already clear from the wording of Article 2(1) in conjunction with the 18 definition of ‘illegal stay’ and ‘third-country national’ in Article 3 (1) and (2), this provision explicitly emphasises that persons enjoying the right of free movement under Union law are excluded from the Directive’s scope of application. The legal value of this provision is of declaratory nature. Third-country nationals whose claim to be family member of a Union citizen 19 enjoying an EU right to free movement under Article 21 TFEU or the Free Movement Directive 2004/38/EC was rejected by a Member State may be considered as illegally staying third-country national. Such persons may therefore fall in the scope of application of the Directive and the minimum standards, procedures and rights foreseen therein will have to be applied.36 At the same time, however, the person concerned will continue – as a more favourable provision under Article 4(2) of the Directive – to be able to rely on the procedural safeguards provided for in Chapter VI of the Free Movement Directive 2004/38/EC (for example as regards notification and justification of decision, the time allowed to voluntarily leave the territory, redress procedures etc.).

Article 3 Definitions For the purpose of this Directive the following definitions shall apply: 1. ‘third-country national’ means any person who is not a citizen of the Union within the meaning of Article 17(1) of the Treaty and who is not a person enjoying the Community right of free movement, as defined in Article 2(5) of the Schengen Borders Code; 2. ‘illegal stay’ means the presence on the territory of a Member State, of a thirdcountry national who does not fulfil, or no longer fulfils the conditions of entry as set out in Article 5 of the Schengen Borders Code or other conditions for entry, stay or residence in that Member State; 3. ‘return’ means the process of a third-country national going back – whether in voluntary compliance with an obligation to return, or enforced – to: – his or her country of origin, or – a country of transit in accordance with Community or bilateral readmission agreements or other arrangements, or – another third country, to which the third-country national concerned voluntarily decides to return and in which he or she will be accepted; 4. ‘return decision’ means an administrative or judicial decision or act, stating or declaring the stay of a third-country national to be illegal and imposing or stating an obligation to return; 5. ‘removal’ means the enforcement of the obligation to return, namely the physical transportation out of the Member State; 6. ‘entry ban’ means an administrative or judicial decision or act prohibiting entry into and stay on the territory of the Member States for a specified period, accompanying a return decision; 36

Commission Return Handbook, p. 7.

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7. ‘risk of absconding’ means the existence of reasons in an individual case which are based on objective criteria defined by law to believe that a third-country national who is the subject of return procedures may abscond; 8. ‘voluntary departure’ means compliance with the obligation to return within the time-limit fixed for that purpose in the return decision; 9. ‘vulnerable persons’ means minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Content I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Third-country national . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Illegal stay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Return. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Return decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Removal and removal order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Entry ban . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. Risk of absconding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. Voluntary departure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9. Vulnerable person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 3 5 10 14 18 21 22 24 25

I. General remarks 1

Article 3 defines the most important terms used in the Directive. By providing these definitions, Article 3 seeks to ensure a common understanding of the Directive’s provisions in all Member States and to safeguard a harmonized implementation of the common standards and procedures across the EU.

II. Drafting history 2

Compared to the Commission proposal the final list of definitions in Article 3 is longer. The definitions of ‘risk of absconding’ – Article 3(7), ‘voluntary departure’ – Article 3(8) and ‘vulnerable person’ – Article 3(9) have been added at the end of the trilogue negotiations in order to reflect the content of the final compromise text. It is worth noting that the term ‘expulsion’ is not used in the Directive because its meaning differs widely between Member States and may cover both ending of legal stay as well as return.37 The definition of ‘removal order’ was deleted by Council at an early stage of the negotiations.38

III. Definitions 1. Third-country national 3

The definition differs from the definition used in a number of other legal migration directives since it expressly excludes third-country nationals who enjoy the Union right 37

Commission Staff Working Document SEC(2005) 1175 p. 3–4. The deletion was linked to the abandonment by Council of the obligatory two-step procedure initially proposed by the Commission. See: Lutz, The Negotiations on the Return Directive, p. 49–50. 38

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of free movement. This exclusion was added by Council at an early stage of negotiations in order to align the definition with the terminology used in Articles 2(5) and (6) Schengen Borders Code. Stateless persons aren’t Union citizens. They are therefore covered by the definition, unless they enjoy the Union right of free movement. Third-country nationals whose claim to be family member of a Union citizen 4 enjoying an EU right to free movement was rejected by a Member State may be considered as third-country national. Such persons may therefore fall in the scope of application of the Directive and the minimum standards, procedures and rights foreseen therein will have to be applied. However, as regards a possible appeal against the decision rejecting being a beneficiary of the Free Movement Directive 2004/38/EC, the person will continue – as a more favourable provision under Article 4 – to be able to rely on the procedural safeguards provided for in Chapter VI of Directive 2004/38/EC (see above Article 2 MN 19).

2. Illegal stay Article 3(2) defines a key term which is the starting point for the applicability of the Directive. The broad definition of ‘illegal stay’ covers any third-country national who does not enjoy a legal right to stay in a Member State. Any third-country present on the territory of an EU Member State is either staying legally (and covered by the legal regime for legally staying third country nationals) or staying illegally (and covered by the legal regime set up by the Return Directive). There is no third option. In this context recital 5 expressly highlights that the Directive establishes a ‘horizontal set of rules, applicable to all third country nationals who do not or no longer fulfil the conditions for entry, stay or residence in a Member State’. The distinction between the entry conditions under the Schengen Borders Code and those under national law has been built in to take account of the hybrid legal nature of the Directive (see above Article 1 MN 18). It is worth noting that, for reasons of consistency with the wording of Article 63(3) TEC (now Article 79(2) TFEU), the Directive uses the word ‘illegal’ (and not the increasingly used term ‘irregular’). Legal fictions under national law which consider persons physically staying in specially designated parts of Member State territory, such as transit areas or certain border areas, as not ‘present on the territory’ must be disregarded for the purposes of Article 3(2), since this would undermine the harmonious application of the Return Directive. Member States may, however, decide not to apply certain provisions of the Directive to this category of persons (see above Article 2 MN 4–5). Practical examples:39 The following categories of third-country nationals may, for instance, be considered as ‘illegally staying’: holders of an expired residence permit or visa; holders of a withdrawn permit or visa; rejected applicants for international protection; applicants for international protection who have received a decision ending their right of stay; persons subject to a refusal of entry at the border; persons intercepted in connection with irregular border crossing; irregular migrants apprehended in Member State territory; persons enjoying no right to stay in the Member State of apprehension (even though they are holding a right to stay in another Member State); persons present on Member State territory during a period for voluntary departure; persons subject to postponed removal. The following categories of persons must not be considered as ‘illegally staying’: asylum applicants enjoying a right to stay in a Member State pending their asylum procedure; persons enjoying a formal toleration status in a Member State (provided such status is considered under national law as ‘legal stay’); 39

Commission Return Handbook, p. 7–8.

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holders of a fraudulently acquired permit for as long as the permit has not been revoked or withdrawn. Persons subject of a pending application for a residence permit may either be legally or illegally staying, depending on whether they already hold a valid visa or another right to stay or not. Applicants for renewal of an already expired permit are illegally staying, but Member State shall consider refraining from issuing a return decision in accordance with Article 6(5) of the Directive. 9 Third-country nationals to whom the return procedure established by the Return Directive had been applied and who are illegally staying in the territory of a Member State without there being any justified grounds for non-return (‘non-removable returnees’) are illegally staying. The special reference made by the ECJ in Achughbabian40 to this category of returnees relates only to the compatibility of national criminal law measures with the Return Directive. The ECJ made no statement on the scope/ applicability of the Return Directive to this category of persons and the general rule that a person is either staying illegally (with the consequence that the Directive applies) or staying legally (with the consequence that the Directive does not apply) therefore continues to remain applicable even in situation of protracted illegal stay (see below Article 14 MN 12).

3. Return This definition clarifies that, for the purpose of the Return Directive, the notion of ‘return’ only covers the process of going back to a third country which can be either the country of origin, a transit country or any other third-country to which the thirdcountry national is accepted. The definition contains qualitative limitations on what can be accepted as ‘return’ and what cannot be accepted as ‘return’ for the purposes of implementing the Directive. It implies that return in compliance with the Directive can only take place in the circumstances exhaustively listed in one of its three indents. It is therefore, for instance, not possible to remove a returnee to a third country which is neither the country of origin nor the country of transit without consent of the returnee. 11 Movements or transfers of illegally staying third-country nationals between EU Member States are not return within the meaning of Article 3(3); they are referred to as ‘going to the territory of another Member State’ (Article 6(2)) or as ‘taking back’ (Article 6(3)). 12 The term ‘country of transit’ in the second indent covers only third countries, not EU Member States. The term ‘readmission agreements or other arrangements’ in the second indent relates to agreements with third countries only. Bilateral readmission agreements between Member States are irrelevant in this context. Such agreements between Member States may, however, in certain cases allow for passing back of irregular migrants to other Member States under Article 6(2) of the Directive. The term ‘voluntarily decides to return’ in the third indent is not tantamount to voluntary departure. ‘Voluntary’ in this context refers to the choice of the destination by the returnee. Such voluntary choice may happen both in the preparation of voluntary departure and of forced return operations: there may be cases in which the returnee prefers to be removed to another third country rather than to his/her country of transit or origin. 13 Specification of the country of return: If a period for voluntary departure is granted, then it is the returnee’s responsibility to make sure that he/she complies with the obligation to return within the set period and there is in principle no obligation for the authorities to specify the country of return. Only if coercive measures have to be used by the authorities (removal), then it is necessary to specify to which third country the person will be removed (see below MN 20). 10

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4. Return decision The definition of a ‘return decision’ focuses on two essential elements. A return decision has to contain: a statement concerning the illegality of the stay and the imposition of an obligation to return, i. e. to go back to a country outside the EU. This means that for intra-EU movements or transfers of third-country nationals between Member States (Article 6(2) and (3)), no return decision within the meaning of Article 3(4) is to be issued. A return decision may contain further elements, such as an entry ban, a voluntary departure period or the designation of the country of return. Return decisions can be issued in the form of a self-standing act or decision or together with other decisions, such as a removal order or a decision ending legal stay (Article 6(6)). Member States enjoy wide discretion concerning the form (decision or act, judicial or administrative) in which a return decision may be adopted. In Sagor41 the ECJ confirmed that the flexible definition of ‘return decision’ does not preclude the decision imposing the obligation to return from being taken in the form of a criminal judgment and in the context of criminal proceedings. A return decision states the illegality of stay in the Member State which issues the decision (it is therefore a purely national finding). Such national finding may, however, be accompanied by an entry ban (Article 11) having an EU-wide effect.

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5. Removal and removal order The reference to ‘enforcement’ in the definition of ‘removal’ means that removal only 18 comes into play if the obligation to return has not been complied with within the period for voluntary departure or if no such period has been granted. The physical transportation out of the Member State concerned is often done on the basis of readmission agreements concluded with relevant countries of origin and transit by either the EU or individual Member States (recital 7). For reasons related to its drafting history (see above Article 1 MN 6 and below Article 6 19 MN 1), the Directive contains no separate definition of ‘removal order’ even though such a decision is an important component of the return procedures foreseen by the Directive. From the logic and wording (Article 6(6) and Article 8(3)) of the Directive, it results that a removal order may either be issued together with the return decision (one-step procedure) or separately (two-step procedure). In those cases in which return decision and removal order are issued together in a one-step procedure, it must be made clear – in those cases in which a period for voluntary departure is granted – that removal will only take place if the obligation to return within the period for voluntary departure has not been complied with. In view of the obligation of Member States to always respect the principle of non- 20 refoulement, the removal (physical transportation out of the Member State) cannot go to an unspecified destination but only to a specified country of return (see above MN 13). The returnee must be made aware of the destination of the removal operation in advance so that he or she can express any reasons for believing that removal to the proposed destination would be in breach of the principle of non-refoulement and is able to make use of the right to an appeal. This may in practice be done either by mentioning the country of return in the separate removal decision (two-step procedure) or by mentioning the country to which the person will be removed in the case of non41

ECJ, Sagor, C-430/11, EU:C:2012:777, para 39.

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compliance with the obligation to return, in the combined return and removal decision (one-step procedure).42

6. Entry ban 21

By referring to the territory of the Member States (plural), the definition of ‘entry ban’ clarifies that the prohibition to enter and stay should not just apply to the territory of the Member State issuing the return decision but to all States bound by the Return Directive (i. e.: all EU Member States except UK and Ireland, plus Switzerland, Norway, Iceland and Liechtenstein). Recital 14 highlights that the EU wide validity of entry bans is aimed at giving national return measures a European dimension. The EU-wide effect of an entry ban must be stated in the entry ban decision issued to a third-country national. It flows from the formulation ‘accompanying a return decision’ that return related entry ban decisions must always be linked to a concrete return decision.

7. Risk of absconding The existence (or absence) of a ‘risk of absconding’ is a decisive element for determining whether a period for voluntary departure shall be granted or not and for deciding on the need of detention. Member States must base their assessment whether there is a risk of absconding or not on objective criteria fixed in national legislation. Frequently used criteria in national law are:43 lack of documentation; absence of cooperation to determinate identity; lack of residence; use of false documentation or destroying existing documents; failing repeatedly to report to relevant authorities; explicit expression of intent of non-compliance; existence of conviction for criminal offence; non-compliance with existing entry ban; violation of a return decision; prior conduct (i. e. escaping); lack of financial resources; being subject of return decision made in another Member State; non-compliance with voluntary departure obligation. 23 The above mentioned national lists of criteria should be taken into account as an element in the overall assessment of the individual situation. According to recital 6, decisions taken under the Directive should be adopted on a case-by-case basis and based on objective criteria, implying that consideration should go beyond the mere fact of an illegal stay. Any automaticity (such as to assume a ‘risk of absconding’ in any case of illegal entry) must be avoided and an individual assessment of each case must be carried out. Such assessment must take into account all relevant factors and may in certain cases lead to a conclusion that there is no risk of absconding even though one or more of the criteria fixed in national law are fulfilled. 22

8. Voluntary departure 24

Voluntary departure is a key concept of the Directive since, in principle, it should be given preference over forced return (recital 10). Voluntary departure in the context of the Return Directive refers to the voluntary compliance with an obligation to return. The term ‘voluntary departure’ does not cover cases in which legally staying thirdcountry nationals decide to go back to their home country based on their own decision. Such ‘truly’ voluntary return falls outside the scope of the Return Directive, since it concerns legally staying and not illegally staying third-country nationals. Going from the territory of one Member State to the territory of another Member State, for instance in cases covered by Article 6(2), cannot be considered as voluntary departure either, since the definition of voluntary departure always requires departure to a third country. 42 43

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Commission Return Handbook, p. 11. Matrix, Evaluation on the application of the Return Directive, section 2.20. on ‘risk of absconding’.

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9. Vulnerable person Contrary to the definition of ‘vulnerable persons’ used in the asylum acquis (see for 25 instance: Article 21 of the Asylum Reception Conditions Directive 2013/33/EU or Article 20(3) of the Qualification Directive 2011/95/EU), the definition in the Return Directive is drafted as an exhaustive list. Based on a systematic interpretation of the EU migration acquis, it can, however, be argued that the need to pay specific attention to the situation of vulnerable persons and their specific needs in the return context is not limited to the expressly enumerated categories of vulnerable persons and that Member States should also pay attention to other situations of special vulnerability, such as those mentioned in the above-quoted provisions of the EU asylum acquis: being a victim of human trafficking or of female genital mutilation, being a person with serious illness or with mental disorders.44

Article 4 More favourable provisions 1. This Directive shall be without prejudice to more favourable provisions of: (a) bilateral or multilateral agreements between the Community or the Community and its Member States and one or more third countries; (b) bilateral or multilateral agreements between one or more Member States and one or more third countries. 2. This Directive shall be without prejudice to any provision which may be more favourable for the third-country national, laid down in the Community acquis relating to immigration and asylum. 3. This Directive shall be without prejudice to the right of the Member States to adopt or maintain provisions that are more favourable to persons to whom it applies provided that such provisions are compatible with this Directive. 4. With regard to third-country nationals excluded from the scope of this Directive in accordance with Article 2(2)(a), Member States shall: (a) ensure that their treatment and level of protection are no less favourable than as set out in Article 8(4) and (5) (limitations on use of coercive measures), Article 9(2)(a) (postponement of removal), Article 14(1) (b) and (d) (emergency health care and taking into account needs of vulnerable persons), and Articles 16 and 17 (detention conditions) and (b) respect the principle of non-refoulement. Content I. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 III. Subject matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1. More favourable provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2. Minimum safeguards for border and border-like cases . . . . . . . . . . . . . . . . . . 12

I. General remarks Article 4 addresses two separate issues: Article 4(1) to (3) emphasise that the Directive 1 is without prejudice to more favourable provisions to be found in relevant EU legislation, 44

Commission Return Handbook, p. 13.

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international agreements concluded by the EU and/or Member States and national law. Similar clauses can be found in most EU asylum and immigration directives. The provision of Article 4(4) is unique in legal terms and would have deserved to figure as a separate Article since it regulates in substance a certain minimum level of protection which must be afforded by Member States to third-country nationals who, for the rest, have been lawfully excluded by Member States from the application of the Directive in accordance with Article 2(2)(a) (‘Border and border-like cases’).

II. Drafting history Paragraphs 4(1) to (3) were already contained in the Commission proposal. It was only for drafting reasons that, during negotiations, their wording was slightly fine-tuned and Article 4(2) shortened in order to take out the long but non-exhaustive list of relevant EU legislation in the field of immigration and asylum. 3 Article 4(4) was added during trilogue negotiations as part of a compromise deal between Parliament and Council on the exclusion of certain border cases by Article 2(2)(a). In Article 2(2) of its proposal the Commission had already proposed a ‘boomerang technique’ – allowing Member States to exclude transit area cases but obliging Member States at once to nevertheless respect certain basic articles of the directive in these cases. This provision was further fine-tuned in the course of negotiations45 and an additional express obligation on Member States to always respect the principle of non-refoulement was added. 2

III. Subject matter 1. More favourable provisions Article 4(1) refers to more favourable provisions of bilateral or multilateral agreements concluded by the EU and/or the Member States with one or more third-countries. An example for such an agreement is the 1963 EU-Turkey Association Agreement and Decision No. 1/80 of the Association Council established under this agreement. 5 The Union acquis relating to Immigration and Asylum referred to in Article 4(2) includes instruments such as the Long Term Residents’ Directive 2003/109/EC, which provides in its Article 12 that third-country nationals who are long term residents enjoy reinforced protection and a number of procedural safeguards against expulsion and removal and the Free Movement Directive 2004/38/EC. 6 Article 4(3) clarifies that Member States may decide autonomously to adopt or maintain national provisions which are more favourable to the persons to whom the Directive applies, provided these rules are compatible with the Directive. This precondition serves the purpose to ensure that the Directive’s harmonizing effect as well as the ‘common discipline’ imposed by the Directive on Member States is not undermined. Concretely this means that in particular the Directive’s many ‘shall’-provisions have to be fully respected. Given that the Return Directive aims at providing for common standards regarding the respect of fundamental rights of the individuals in return procedures, ‘more favourable’ must always be interpreted as ‘more favourable for the returnee’ and not more favourable for the expelling/removing State. Member States are not free to apply stricter standards in areas governed by the Directive.46 4

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Practical examples:47 Member States’ national laws may not deviate to the advantage of the third-country national concerned from obliging their national authorities to issue entry bans in the two mandatory cases set out in Article 11(1). If an illegally staying third-country national does not agree to go back voluntarily in accordance with Article 6(2) to the Member State of which it holds a permit, Member States cannot enforce removal to another Member State (as a more favourable measure) instead of return to a third country, since the general rule under the Directive is return to a third country and not the passing back of returnees to another Member State. If, however, direct return to a third country is impossible (for factual or legal reasons) a Member State practice of enforced passing back to the Member State of which the person holds a permit may arguably not undermine the Directive and could – to the extent that going back to the Member State of which the person holds a right to stay is more favourable for the person concerned than staying irregularly in a second Member State – qualify as a more favourable measure under Article 4(3) (see below Article 6 MN 14). An administrative fine under national law for irregular stay cannot substitute the obligation of Member States to issue a return decision, since this would undermine Article 6(1) and 8(1), read in conjunction with Article 4(2) and (3).48 The Directive (Article 6(4)) expressly allows Member States which do not wish to return minors to grant at any moment a permit or authorisation in accordance with national law. The Directive obliges Member States, however, to say either ‘A’ (grant a permit) or ‘B’ (carry out return procedures). It is not possible to say ‘C’ (refrain from carrying out return of minors without granting a permit to stay) as a ‘more favourable measure’ since this would undermine the harmonizing value of the Directive. Applying parts of the Directive to persons excluded from its scope under Article 2(2)(a) and (b) is possible. Such practice is in the interest of the concerned person and does not undermine the objectives of the Directive.

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2. Minimum safeguards for border and border-like cases Article 4(4) only applies to third-country nationals who have been excluded by a 12 Member State from the Directive’s scope of application, in accordance with Article 2(2)(a) (‘Border and border-like cases’). This means that, if a Member State decides not to make use of Article 2(2)(a), Article 4(4) becomes irrelevant and does not need to be transposed into national law. If Member States opt to apply Article 2(2)(a), they must assure that the level of protection for affected persons is not less favourable than that set out in the provisions of the Directive referred to in Article 4(4). The general safeguards under the EU asylum acquis (such as in particular on access 13 to asylum procedures, provision of information, making arrangements for translation, …) are by no means waived by Member States choice not to apply the Directive to border cases. As regards persons who are refused entry at a land border and who are still physically 14 staying on third-country territory at shared border crossing points situated on thirdcountry territory, access to asylum procedures and a transfer into Member State territory must be granted in accordance with Annex VI point 1.1.4.3(a) of the Schengen Borders Code (SBC). Annex VI point 1.1.4.3 SBC does not specify, whether Article 4(4) of the Return Directive will also have to be respected in such situations. The phrase in section 1.1.4.3.: ‘For the purpose of this Regulation, any check carried out by Member 47 48

Commission Return Handbook, p. 18–19. ECJ, Zaizoune, C-38/14, EU:C2015:260.

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State border guards in a shared border crossing point located on the territory of a third country shall be deemed to be carried out on the territory of the Member State concerned.’ contains a legal fiction, according to which checks carried out by EU border guards on third country territory are deemed to be carried out on the territory of the Member State concerned. The case can therefore be made that as a result of this fiction, not only SBC rules, but also other relevant EU rules have to be respected and applied by Member State authorities, including Article 4(4) of the Return Directive.

Article 5 Non-refoulement, best interests of the child, family life and state of health When implementing this Directive, Member States shall take due account of: (a) the best interests of the child; (b) family life; (c) the state of health of the third-country national concerned, and respect the principle of non-refoulement. Content I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Substance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. General remarks 1

With its emphasis on four particularly relevant rights, Article 5 expressly reinforces the Directive’s general objective to apply the Directive in accordance with fundamental rights and international law obligations, as set out in Article 1. Since all rights enumerated in Article 5 would also be applicable without express mentioning in the text (fundamental rights as general principles of Union law) it can be argued that Article 5 is primarily of declaratory nature.

II. Drafting history 2

Article 5 was already contained in the Commission’s proposal but it was reworded and upgraded during the negotiating process due to pressure from the EP.49

III. Substance 3

In legal terms all Member States are already directly bound by the relevant international instruments to guarantee the four rights enumerated in Article 5 (see above Article 1 MN 19). Member States are obliged to pay attention to the respect of these rights in all stages of the return procedure. Whenever the Directive refers to ‘specific circumstances of the individual case’, such as in Article 7(2), 9(2) and 11(2) and whenever it uses other formulations providing a margin of discretion to the authorities, this discretion should be used by giving direct consideration to these rights. 49

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If Member States decide to grant a right to stay for reasons mentioned in Article 5 to an illegally staying third-country national (either because they are obliged to do so under international law or Union law or because they decide autonomously to do so) return procedures must be stopped and an already issued return decision must be withdrawn or suspended under Article 6(4). Article 5 is formulated as a closed list. One may, however, argue that it constitutes in substance a declarative enumeration of the most important rights and that other relevant rights mentioned in the Directive (e. g. the need to pay specific attention to the situation of vulnerable persons) or the CFR enjoy equal standing and must not be considered as ‘second category rights’. The best interest of the child (enshrined in Article 14 CFR), is a guiding principle which is also expressly mentioned and further concretised in the context of Article 10 (return of unaccompanied minors) and Article 17 (detention of minors and families). Respect for family life (enshrined in Article 8 ECHR as well as Article 7 CFR) is further mentioned in four concrete provisions of the Directive, dealing with the prolongation of a voluntary departure period (Article 7), return of minors (Article 10), safeguards pending postponed return (Article 14) and detention of minors and families (Article 17). The obligation to take account of the state of health of the third-country national concerned is further reflected in the context of removal (Article 8), postponement of removal (Article 9), safeguards pending postponed return (Article 14) and conditions of detention (Article 16). In Abdida,50 the ECJ found that the enforcement of a return decision entailing the removal of a third country national suffering from a serious illness to a country in which appropriate treatment is not available may constitute, in certain cases, a direct infringement of Article 5. The right to non-refoulement (enshrined in Article 3 ECHR as well as Article 19(2) CFR) and also expressly mentioned in Article 4(4)(b) and 9(1) is absolute and must not be restricted under any circumstances, even if third-country nationals are a threat to public order or have committed a particularly serious crime. Such persons may be excluded from refugee status (under the exclusion clause of the Geneva Convention) but they still cannot be returned to a place at which they may be subject to inhumane or degrading treatment.

CHAPTER II TERMINATION OF ILLEGAL STAY Article 6 Return decision 1. Member States shall issue a return decision to any third-country national staying illegally on their territory, without prejudice to the exceptions referred to in paras 2 to 5. 2. Third-country nationals staying illegally on the territory of a Member State and holding a valid residence permit or other authorisation offering a right to stay issued by another Member State shall be required to go to the territory of that other Member State immediately. In the event of non-compliance by the third-country national concerned with this requirement, or where the third-country national’s immediate departure is required for reasons of public policy or national security, para 1 shall apply. 3. Member States may refrain from issuing a return decision to a third-country national staying illegally on their territory if the third-country national concerned is 50

ECJ, Abdida, C-562/13, EU:C:2014:2453, para 49.

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taken back by another Member State under bilateral agreements or arrangements existing on the date of entry into force of this Directive. In such a case the Member State which has taken back the third-country national concerned shall apply para 1. 4. Member States may at any moment decide to grant an autonomous residence permit or other authorisation offering a right to stay for compassionate, humanitarian or other reasons to a third-country national staying illegally on their territory. In that event no return decision shall be issued. Where a return decision has already been issued, it shall be withdrawn or suspended for the duration of validity of the residence permit or other authorisation offering a right to stay. 5. If a third-country national staying illegally on the territory of a Member State is the subject of a pending procedure for renewing his or her residence permit or other authorisation offering a right to stay, that Member State shall consider refraining from issuing a return decision, until the pending procedure is finished, without prejudice to para 6. 6. This Directive shall not prevent Member States from adopting a decision on the ending of a legal stay together with a return decision and/or a decision on a removal and/or entry ban in a single administrative or judicial decision or act as provided for in their national legislation, without prejudice to the procedural safeguards available under Chapter III and under other relevant provisions of Community and national law. Content I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Obligation to issue return decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. General rule – Article 6(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Exceptions to the general rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Holding a right to stay in another Member State – Article 6(2) . . . b) Existing bilateral agreements between Member States – Article 6(3) c) Granting a right to stay – Article 6(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) Pending procedure for renewing a permit – Article 6(5). . . . . . . . . . . . e) Application of Directive 2001/40/EC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . f) Application of Dublin rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . g) Special rules on readmission between Member States in cases of intra-EU mobility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Combined decisions – Article 6(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. General remarks 1

Article 6 contains the most important operational provision of the Directive. Article 6(1) establishes the general rule that a return decision must be issued to any illegally staying third-country national while Article 6(2) to (5) contain certain exceptions to that rule. Article 6(6) clarifies that Member States may combine in one single administrative or judicial act the decision on the ending of a third-country national’s legal stay (not covered by this Directive) with a return decision issued under this Directive.

II. Drafting history 2

This Article has been subject of particularly controversial discussions in the Council and, as a result, has been significantly redrafted. The Commission’s proposal provided for a true two-step procedure whereby Member States should first be obliged to issue a return decision which would then be executed by means of a removal order in cases 686

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where the person concerned had not returned voluntarily or where there was a risk of absconding. For many Member States this two-step approach was unacceptable out of the fear that it would be too bureaucratic and lead to serious procedural delays. As a consequence this approach was abandoned and the provision on removal orders became a ‘may’ provision and was moved to Article 8(3).51

III. Obligation to issue return decision 1. General rule – Article 6(1) Member States are obliged to issue a return decision to any third-country national staying illegally in their territory, unless an express derogation is foreseen by Union law. Member States are not allowed to tolerate in practice the presence of illegally staying third-country nationals on their territory without either launching a return procedure or granting a right to stay. This obligation on Member States to either initiate return procedures or to grant a right to stay aims at reducing ‘grey areas’, to prevent exploitation of illegally staying persons and to improve legal certainty for all involved.52 The relevant criterion for determining the Member State in charge of carrying out return procedures is the place of apprehension. Example: If an irregular migrant has entered the EU via Member State A (undetected), subsequently travelled through Member States B and C (undetected) and was finally apprehended in Member State D, Member State D is in charge of carrying out a return procedure and issuing a return decision. Temporary reintroduction of internal border control between Schengen States doesn’t affect this principle (see above Article 2 MN 9). Unlike in the Commission proposal, the issue of the effect of a Member State’s return decision in the other Member States is not addressed in the final text of the Directive. An abstract legal obligation, such as national legislation which foresees that a thirdcountry national is obliged to leave the territory of the EU if his stay is illegal, doesn’t constitute a return decision. The obligation to return must be substantiated in each case by an individualised return decision whenever the authorities have discovered a concrete violation of the abstract rule. An administrative fine under national law for irregular stay may be imposed in parallel with the adoption of a return decision. Such administrative fine cannot, however, substitute the obligation to issue a return decision (see above Article 4 MN 9). Apprehension in the course of an exit check: A return decision should in principle also be adopted if an illegally staying third-country national is apprehended at the EU external border when leaving the EU territory. Even though in such a specific situation, the person is anyhow about to leave the EU, the issuing of a return decision makes sense, because it allows Member States to also issue an entry ban, because it has financial implications (distribution of allocations under relevant EU financial instruments, based on the number of return decisions issued by Member States) and because it impacts the reliability of statistical data. However, in those cases in which the bureaucracy involved (time needed) for issuing a return decision might have contrary effects (the person might miss a flight and illegal stay would be prolonged), it can be argued that Member States may refrain53 from issuing a return decision as a more favourable measure covered by Article 4. 51

Lutz, The Negotiations on the Return Directive, p. 49. See answer of the Commission of 7 April 2010 to EP parliamentary question P-1687/10. 53 In the Return Handbook, p. 24, the Commission takes a more restrictive approach and recommends that normally no return decision should be issued. It seeks to limit the cases in which return decisions could be issued to exceptional cases which a significant overstay is detected upon exit control. 52

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Return decisions in accordance with the Directive must also be taken when a return procedure is carried out using a readmission agreement: the use of readmission agreements with a third country (covering the relations between EU Member States and third countries) doesn’t affect the full and inclusive application of the Directive (covering the relation between removing State and returnee) in each individual case of return. In fact the use of the readmission agreement presumes the issuance of the return decision first. The procedure to be followed when using readmission agreements with other Member States is specifically regulated in Article 6(3). 9 Apprehension practices: The obligation on Member States to issue a return decision to any third-country national staying illegally on their territory is subject to the principle of proportionality expressly recognised by the Directive in its recital 20: the legitimate aim of fighting illegal migration may be balanced against other legitimate State interests, such as general public health considerations, the interest of the State to fight crime, the interest to have comprehensive birth registration, respect for the best interest of the child (expressly highlighted in recital 22) as well as other relevant fundamental rights recognised by the CFR. In its draft Return Handbook54 the Commission makes express reference to the 2012 Fundamental Rights Agency document55 ‘Apprehension of migrants in an irregular situation – fundamental rights considerations’ and points out that practices in Member States which respect the principles set out in this document will not be considered by the Commission as an infringement of the obligation to issue return decisions to any third-country national staying illegally under Article 6(1) of the Directive. 8

2. Exceptions to the general rule a) Holding a right to stay in another Member State – Article 6(2). Article 6(2) – which replaces a similar rule contained in Article 23(2) and (3) of the Convention Implementing the Schengen Agreement – foresees that no return decision should be issued to an illegally staying third-country national who is holding a valid permit or other authorisation to stay in another Member State. In such cases the third-country national should in the first place be required to go immediately back to the Member State where he/she enjoys a right to stay. Only if the person does not comply with this request or in cases of risk for public policy or national security, a return decision shall be adopted. 11 The form in which the request ‘to go to the territory of that other Member State immediately’ is issued should be determined in accordance with national law. In order to avoid confusion, the decision should not be labelled ‘return decision’, since the notion of ‘return’ always implies departure to a third country. 12 The directive gives no specific indication regarding the time which should elapse between the request to go to the territory of another Member State until the moment at which a return decision in accordance with Article 6(1) is issued. Taking into account the fact that on the one hand the term ‘immediately’ is used in the legal provision and that on the other hand the principle of proportionality always needs to be respected, it can be argued that the period should be brief, but still sufficiently long to allow for an orderly and dignified departure, taking into account the individual circumstances and needs of the person concerned. The time between the request to go to the other Member State and the issuing of a return decision under Article 6(1) must not be counted as part 10

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Commission Return Handbook, p. 22–24. Fundamental Rights Agency, Guidance document on the fundamental rights considerations of apprehending migrants in an irregular situation (2012), and Council doc. 13847/12 of 18 September 2012. 55

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of an eventual period for voluntary departure granted in accordance with Article 7, since the period for voluntary departure is an element of the return decision and will start running only with the issuing of a return decision. The term ‘residence permit or other authorisation offering a right to stay’ is very 13 broad and covers any status granted or permit issued by a Member State which offers a right to legal stay (and not just an acceptance of temporary postponement of return/ removal). There is currently no central system for exchanging information between Member States to verify the validity of national permits. Member States therefore need to cooperate bilaterally and provide relevant information to each other, in accordance with national law and bilateral cooperation arrangement. As a general rule no removal to other Member States: If a third-country national 14 does not agree to go back voluntarily in accordance with Article 6(2) to the Member State of which he/she holds a permit, Article 6(1) becomes applicable and a return decision, providing for direct return to a third country should be adopted. It is not possible to pass back the person to the other Member State with force, unless an existing bilateral agreement between Member States which was already in force on 13.1.2009 (see below MN 16) provides expressly for this possibility or in exceptional circumstances as a more favourable measure when return/removal to a third country is not possible and the Member State that issued the permit agrees to take the person back (see above Article 4 MN 8 as well as Commission Return Handbook, p. 30). No issuing of EU entry bans: When passing back an illegally staying third-country 15 national to another Member State under Article 6(2), no EU entry ban can be issued under Article 11, since Article 11 applies only in connection with the issuing of a return decision and doesn’t apply in cases in case of mere ‘passing back’ to another Member State. Moreover it is pointless from a practical point of view to issue an EU entry ban in a situation where the person will continue to legally stay in another Member State. b) Existing bilateral agreements between Member States – Article 6(3). The refer- 16 ence in Article 6(3) to bilateral readmission agreements or arrangements between Member States is an explicit ‘stand-still clause’ as it only refers to agreements existing on the date of entry into force of the Directive. Article 6(3) is an exception to the general principle upon which the Directive is based, namely to promote direct return of illegally staying persons from the EU to third countries. The possibility to request another Member State to take back an illegally staying person under bilateral agreements which then in turn would carry out the return to a third country (‘domino-return’) runs contrary to this principle and was only included into the text of the Directive at a late stage of negotiations56 following requests from Member States which insisted that the Directive should not oblige them to change established practices of taking/passing back illegally staying third-country nationals to other Member States under existing bilateral agreements.57 Given the large number of existing bilateral agreement between Member States, the practical importance of Article 6(3) is significant. Member States may only use the option offered by Article 6(3) in relation to bilateral 17 readmission arrangements that entered into force before 13.1.2009. Existing agreements which were renegotiated or renewed after 13.1.2009 may continue to be covered by Article 6(3) if the renegotiated or renewed agreement is an amendment of the already existing agreement and not an ‘aliud’ (an entirely new agreement with different substance). 56

Lutz, The Negotiations on the Return Directive, p. 45. An indicative list of the existing bilateral readmission agreements between Member States can be found at the ‘inventory of the agreements linked to readmission’ hosted by the Return migration and Development Platform of the European University Institute, available at: http://rsc.eui.eu/RDP/research/ analyses/ra/ [last accessed in March 2015]. 57

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The Directive does not expressly interdict the subsequent use of bilateral agreements between Member States A-B and B-C. Since this kind of subsequent procedures is both cost intensive for administrations and involves additional discomfort for the returnee, the Commission encourages Member States in its Return Handbook58 to refrain from applying such practices. 19 No issuing of EU entry bans: When passing back an illegally staying third-country national to another Member under Article 6(3) no EU entry ban can be issued under Article 11, since Article 11 applies only in connection with the issuing of a ‘real’ return decision and doesn’t apply in cases in case of mere ‘passing back’ to another Member State. 18

c) Granting a right to stay – Article 6(4). Member States are free – at any moment – to grant a permit or right to stay to an illegally staying third-country national. In this event any pending return procedure shall be closed and an already issued return decision or removal order must be withdrawn or suspended. The same applies in cases in which Member States have to grant a right to stay, e. g. following the submission of an asylum application. It is up to Member States to decide which approach (withdrawal or suspension of the return decision) they choose, taking into account the nature and likely duration of the permit or right to stay which was granted. 21 The ECJ confirmed59 that Article 6(4) cannot interpreted as implying an obligation on Member States to regularise (grant a permit to) returnees, even in situations in which it becomes clear that there is no more reasonable prospect of removal (see below Article 14 MN 13). 20

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d) Pending procedure for renewing a permit – Article 6(5). Member States are free to refrain from issuing a return decision to illegally staying third-county nationals who are waiting for a decision on the renewal of their permit. This provision is intended to protect third-country nationals who were legally staying in a Member State for a certain time and who – because of delays in the procedure leading to a renewal of their permit – temporarily become illegally staying. In its Return Handbook,60 the Commission encourages Member States to make use of this ‘may’ – provision in all cases in which it is likely that the application for renewal will be successful and to provide the persons concerned at least with the same treatment as the one offered to returnees under Article 14 during a period for voluntary departure or during postponed return.

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e) Application of Directive 2001/40/EC. The effect of a return decision issued by one Member in another Member State had been subject of a separate chapter V of the Commission proposal. This chapter, as well as Article 20 of the proposal which foresaw to repeal Council Directive 2001/40/EC61 on the mutual recognition of decision on the expulsion of third-country nationals, was, however, removed during negotiations and Directive 2001/40/EC remained in force. Directive 2001/40/EC expressly enables the recognition of a return decision issued by a competent authority in one Member State against a third-country national present within the territory of another Member State.62 Article 6 of the Return Directive does not mention the case that a second Member State recognises a return decision issued by a first Member State in accordance with Directive 2001/40/EC. A literal interpretation of Article 6 would require in such a case the recognising Member State to also issue a full second return decision in accordance 58

Commission Return Handbook, p. 31. ECJ, Mahdi, C-146/14 PPU, EU:C:2014:1320, paras 87–89. 60 Commission Return Handbook, p. 33. 61 Directive 2001/40/EC (OJ 2001 L 149/34) on mutual recognition of expulsion decisions. 62 Directive 2004/40/EC is complemented by Decision 2004/191/EC setting out the criteria for compensation of financial imbalances resulting from the application of Directive 2001/40. 59

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with the Return Directive. This would deprive Directive 2001/40/EC of any added value. It is therefore necessary to look for an interpretation which gives a useful meaning to the continued existence of Directive 2001/40/EC. A systematic and teleological interpretation suggests that a second Member State applying Directive 2001/40 (recognising a return decision issue by a first Member State) should not be obliged to issue a new return decision. Since the first Member State has already respected the provisions of the Return Directive on issuing return decisions and legal remedies, the second Member State could ‘take over’ – following the recognition of the first Member States decision in accordance with Directive 2001/40/EC – and apply the Return Directive’s safeguards relating to enforcement of return (removal) when enforcing the recognised return decision. This way any undermining of the protection related provisions of the Return Directive can be avoided. Based on the above interpretation (which is also supported by the Commission in its 24 Return Handbook63) Member State A has – in practice – the choice, when apprehending a third-country national who is already subject of a return decision issued by Member State B, of either: 1. Issuing a new return decision under Article 6(1) or 2. Recognising the return decision issued by Member State B in accordance with Directive 2001/40/EC or 3. Passing back the person to Member State B under an existing bilateral agreement in compliance with Article 6(3). f) Application of Dublin rules. Article 6 does not expressly mention the case that a 25 second Member State makes use of the possibility offered under Dublin rules to ask a first Member State to take back an illegally staying third-country national who is covered by the scope of Dublin rules. A literal interpretation of Article 6 which would require in such a case the requesting (the second) Member State to also issue a full return decision in accordance with the return Directive, would deprive the relevant Dublin rules of their added value. The wording of the Dublin III Regulation (EU) No 604/2013 expressly addresses this issue and provides for a number of rules regulating the co-existence of the Return Directive and the Dublin Regulation. In practice, the following situations can arise:64 1. A third-country national staying illegally in a second Member State has a status as 26 applicant for international protection in the first Member State (on-going procedure, not yet a final decision). In this case the Dublin Regulation takes precedence, on the basis of the underlying principle that every third-country national lodging an application for international protection in one of the Member States should have his/her needs for international protection fully assessed by one Member State. A Member State cannot return that third-country national to a third country; instead it may only send him/her to the Member State responsible under Dublin Regulation in order to have his/her claim examined. 2. A third-country national staying illegally in a second Member State has withdrawn 27 his/her application for international protection in the first Member State: If the withdrawal of the application has led to a rejection of the application (on the basis of Article 27 or 28 of the Asylum Procedures Directive 2013/32/EU), the rules described below under point 3 (choice between applying Dublin rules or the Return Directive) can be applied. If the withdrawal of the application hasn’t led to a rejection of the application, the Dublin Regulation takes precedence, on the basis of the underlying principle that 63 64

Commission Return Handbook, p. 25. Commission Return Handbook, pp. 26–27.

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every third-country national lodging an application for international protection in one of the Member States should have his/her needs for international protection fully assessed by one Member State. 3. A third-country national staying illegally in a second Member State has a final decision in the first Member State, rejecting his/her application for international protection. In this case, a choice can be made between applying the Dublin Regulation or the Return Directive. This is stipulated in Article 24(4) of the Dublin III Regulation (EU) No 604/2013. Once authorities decide to make a Dublin request, the application of the Return Directive and return procedures are suspended and only Dublin rules apply (this also affects rules on detention and on legal remedies). 4. A third-country national staying illegally in a second Member State had already been subject of successful return/removal (following rejection or withdrawal of an application for international protection) from the first Member State to a third country. In this case, should the third-country national re-enter EU territory, Article 19(3) of the Dublin III Regulation (EU) No 604/2013 stipulates that the first Member State can no longer be responsible for the third-country national (and therefore no transfer can be foreseen to this Member State). In this scenario the Return Directive will have to be applied. 5. A third-country national staying illegally in a second Member State already enjoys international protection status granted by a first Member State. Since the Dublin Regulation does not contain rules on taking back beneficiaries of international protection, the ‘general regime’ foreseen in Article 6(2) will have to be applied. This implies that the second Member State will have to ask the person to go back to the first Member State under Article 6(2) (see above MN 10–15). 6. A third-country national staying illegally in a second Member State had already been fingerprinted following irregular entry to a first Member State but did not request international protection in the first Member State. The second Member State cannot transfer the person back to the first Member State in accordance with Dublin rules since there isn’t any link to an international protection procedure and the Dublin Regulation is not applicable. g) Special rules on readmission between Member States in cases of intra-EU mobility. Some Directives in the field of legal migration contain special rules65 on readmission between Member States in cases of intra-EU mobility of certain categories of third-country nationals (ICTs; holders of EU Blue Cards; long term residents). These provisions are to be considered as ‘leges speciales’ which have to be followed in the first place in those cases/constellations expressly covered by the said Directives.

IV. Combined decisions – Article 6(6) 33

Article 6(6) confirms that Member States may combine several different decisions (decisions on ending of legal stay, on return, on removal, on entry ban) within one administrative or judicial act, provided the relevant safeguards and provisions for each individual decision are respected. Decisions on ending of legal stay (such as the rejection of an application for international protection or withdrawal of a visa) may therefore be adopted either separately or together with a return decision in a single administrative or judicial act. It can be argued that this para confirms a general principle, according to which Member States are free to combine for reasons of administrative efficiency several 65 ICT Directive 2014/66/EU – Article 23; Long Term Residents Directive 2003/109/EC (amended by Directive 2011/51/EU) – Articles 12 and 22; Blue Card Directive 2009/50/EC – Article 18.

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different decisions within one act, provided the relevant safeguards and provisions for each individual decision are respected. The possibility to adopt several decisions within one act is therefore not limited to the decisions expressly enumerated in this para. As regards the accumulation of procedural rights of individuals (such as the right to 34 be heard) within the respective procedures leading to a combined decision (e. g. rejection of an application for international protection and issuing of a related return decision), the ECJ acknowledged in Mukarubega66 that persons who have been duly heard within the context of one procedure (related to international protection) need not necessarily be heard again before the adoption of a return decision, provided that both decisions are closely linked in substance. In this case the ECJ followed a flexible rather than a formalistic approach and expressly emphasised in para 71 that procedural rights must not be used for unduly prolonging procedures.

Article 7 Voluntary departure 1. A return decision shall provide for an appropriate period for voluntary departure of between seven and thirty days, without prejudice to the exceptions referred to in paras 2 and 4. Member States may provide in their national legislation that such a period shall be granted only following an application by the third-country national concerned. In such a case, Member States shall inform the third-country nationals concerned of the possibility of submitting such an application. The time period provided for in the first subpara shall not exclude the possibility for the third-country nationals concerned to leave earlier. 2. Member States shall, where necessary, extend the period for voluntary departure by an appropriate period, taking into account the specific circumstances of the individual case, such as the length of stay, the existence of children attending school and the existence of other family and social links. 3. Certain obligations aimed at avoiding the risk of absconding, such as regular reporting to the authorities, deposit of an adequate financial guarantee, submission of documents or the obligation to stay at a certain place may be imposed for the duration of the period for voluntary departure. 4. If there is a risk of absconding, or if an application for a legal stay has been dismissed as manifestly unfounded or fraudulent, or if the person concerned poses a risk to public policy, public security or national security, Member States may refrain from granting a period for voluntary departure, or may grant a period shorter than seven days. Content I. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 III. Voluntary departure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1. General rule – Article 7(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2. Extension of voluntary departure period – Article 7(2). . . . . . . . . . . . . . . . . . 8 3. Obligations pending voluntary departure – Article 7(3) . . . . . . . . . . . . . . . . . 11 4. Reason for refusing a voluntary departure period – Article 7(4) . . . . . . . 13 IV. Practical implementation of Article 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

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I. General remarks 1

The detailed rules on voluntary departure set out in this provision reflect the Directive’s underlying approach that, wherever possible, voluntary departure should be preferred over forced return (recital 10). Voluntary compliance with an obligation to return is generally considered to be preferable for the threefold reason that it is a more dignified, safer and more cost-effective return option than enforced return (removal).

II. Drafting history In the Commission proposal, the relevant provisions could be found in Article 6(2). During the trilogue negotiations67 it emerged that more details than originally foreseen in the Commission proposal needed to be regulated and that higher visibility should be given to voluntary departure. It was therefore decided to create a separate and more elaborated Article 7, focusing exclusively on voluntary departure and to add an express definition of voluntary departure in Article 3(8). 3 The Commission had proposed to oblige Member States to provide for an appropriate period for voluntary departure of ‘up to four weeks’. The EP (with a Committee level amendment) requested to provide for a period of ‘at least four weeks’. The EPs insistence on a minimum period was motivated by the fear that otherwise only very short periods or no periods at all would be granted by Member States. In the trilogue negotiations the Council Presidency accepted a ‘period ranging between seven days and one month’ and given Council’s insistence on this position, the EP finally accepted this wording. 4 According to the Commission proposal, no period for voluntary departure should be granted if there are reasons to believe that the person concerned might abscond. This provision survived the trilogue negotiations in substance. Council requested, however, further derogations in those cases in which the person concerned poses a risk to public security, public order or national security and cases in which an application for a legal stay (including international protection) has been dismissed as manifestly unfounded or fraudulent. The EP and Commission tried to avoid further derogations and argued that the second derogation (unfounded or fraudulent application) should only be accepted to the extent that the behaviour of the person concerned allowed drawing the conclusion that there is a ‘risk of absconding’. Council succeeded, however, to have both additional derogations in the text of Article 7. 2

III. Voluntary departure 1. General rule – Article 7(1) Article 7(1) is a mandatory (‘shall’) provision which sets out the general rule that a return decision has to provide for an appropriate period for voluntary departure, subject to the exceptions laid down in Article 7(2) to (4). A period between 7 and 30 days is the general rule but the concrete decision on what precise period is actually to be considered ‘appropriate’ depends on the circumstances of the individual case. 6 According to the second sentence of Article 7(1), Member States are entitled to make the granting of a period for voluntary departure subject to an application by the third5

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country national.68 Information about the possibility to apply for a period for voluntary departure in accordance with Article 7 (1) third sentence should be given individually to the person concerned. General information sheets for the public may be helpful but must always be complemented with individualised information to the concerned person. The time frame of 7–30 days constitutes a general principle. It is binding for Member 7 States to fix a period which sticks to this frame, unless specific circumstances of the individual case justify an extension in accordance with Article 7(2). In line with the right to be heard enshrined in Article 41(2) CFR, Member States should provide the returnee with a possibility to specify individual circumstances and needs to be taken into account when determining the period to be granted, both in cases where the period for voluntary departure is determined ex-officio and in cases in which the period is fixed following an application of the returnee. In its judgment in Boudjlida,69 the ECJ expressly confirmed that the right to be heard includes a right of the returnee to express his/her point of view on the detailed arrangements for return.

2. Extension of voluntary departure period – Article 7(2) Article 7(2) clarifies that, in specific cases, the period for voluntary departure shall be 8 extended, where necessary. The formulation ‘shall, where necessary’ clarifies that Member States are obliged to give consideration to a prolongation if there are objective reasons for doing so. The reasons for extension may stem from the sphere of the returnee or of the returning Member State. Besides the reasons expressly mentioned in Article 7(2) (length of stay, children attending school and family and social links), Member States also have to pay attention to other relevant rights and considerations mentioned in the Directive, such as the need to take due account of the best interest of the child and the state of health of returnees as well as the need to pay specific attention to the situation of vulnerable persons (see above Article 5 MN 3). The Directive remains silent as to the maximum length of extension which therefore 9 is left to Member States’ national implementing legislation and administrative practice. Taking into account the reference in the text to children attending school (logically linked to the idea of letting children finish their school year) extensions of up to 1 year are certainly covered by this provision. An extension of the period beyond 30 days can already be granted from the outset. It 10 is not necessary to first issue an ordinary (7–30 days) period and to subsequently extend it. In case of an extension of the period for voluntary departure, the competent authorities have to provide the third-country national concerned with a written confirmation of this fact in accordance with Article 14(2).

3. Obligations pending voluntary departure – Article 7(3) Article 7(3) covers situations in which a potential risk of absconding may be averted 11 by imposing certain obligations for the duration of the period for voluntary departure. The possibility to impose certain obligations may be an advantage for the third-country national concerned since it may allow the granting of a period for voluntary departure in cases which would not normally otherwise qualify for such treatment. The obligations enumerated in Article 7(3) can only be imposed if there is a risk of absconding to avoid. If there is no risk of absconding, they are not justified. This was expressly confirmed by the ECJ in El Dridi.70 68 According to Matrix, Evaluation on the application of the Return Directive, p. 84, only Hungary, Malta and Italy made use of this option. 69 ECJ, Boudjlida, C-249/13, EU:C:2014:2431. 70 ECJ, El Dridi, C-61/11 PPU, EU:C:2011:268, para 37.

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When imposing obligations under Article 7(3), Member States should take into account the individual situation of the returnee and avoid imposing obligations which can de facto not be complied with (if a person e. g. doesn’t possess a passport, he/she won’t be able to submit it). If this is required in an individual case, the obligations mentioned in Article 7(3) can also be imposed in a cumulative manner.

4. Reason for refusing a voluntary departure period – Article 7(4) The objective of Article 7 is to promote voluntary departure. Article 7(4) takes into account that voluntary departure is not always a feasible option, namely in circumstances in which there is a risk that the person will not act in compliance with the law and abscond or disappear or avoid return. Against this background Article 7(4) allows Member States not to grant a period for voluntary departure in certain circumstances, notably if there is a ‘risk of absconding’. 14 In addition Article 7(4) also lists two specific cases, namely ‘risk to public policy, public security or national security’ and ‘manifestly unfounded or fraudulent applications’ as separate reasons allowing not to grant a period for voluntary departure. These two specific cases must interpreted in the overall context of Article 7 as set out in recital 10 ‘Where there are no reasons to believe that this would undermine the purpose of a return procedure, voluntary departure should be preferred over forced return and a period for voluntary departure should be granted.’ Interpreted in line with this context, a public order concern or a fraudulent application should only then be considered as a relevant reason for not granting a period for voluntary departure if the behaviour of the person concerned allows drawing the conclusion that the person will probably not act in compliance with the law and avoid return. In Zh and O the ECJ underlined, however, that the factors relevant to the determination of whether there is a risk to public policy within the meaning of Article 7(4) are not materially the same as those which are relevant to the assessment of whether there is a risk of absconding. The ECJ clarified in this respect that Member States essentially retain the freedom to determine the requirements of the concept of public policy in accordance with their national needs. The concept of “risk to public policy” presupposes the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. A Member State cannot deem a third-country national to pose a risk to public policy on the sole ground that that national is suspected, or has been criminally convicted, of an act punishable as a criminal offence under national law. Other factors, such as the nature and seriousness of that act, the time which has elapsed since it was committed and any matter which relates to the reliability of the suspicion that the third-country national concerned committed the alleged criminal offence is also relevant for a case-by-case assessment which has to be carried out in any case.71 15 The Return Directive itself does not define the term risk to public policy, public security or national security. Contrary to the use of the public order clauses in the context of other migration and free movement related directives, the use of the public order clause in the context of Article 7(4) only affects the ‘how’ of return (the modalities and timing) not the ‘if’ (the returnee will be obliged to leave in any case). It is therefore not possible to automatically apply the interpretation of the public order clauses given by the ECJ in the context of these different directives. In para 48 of its judgment in Zh. and O., the ECJ expressly confirmed, however, that analogies may be made with its case law on Directive 2004/38/EC (judgment in Gaydarov, C-430/10, para 32). 13

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It is not possible to exclude in general all illegal entrants from the possibility of obtaining 16 a period for voluntary departure.72 Such generalising rule would be contrary to the definition of risk of absconding and the obligation to carry out a case by case assessment. Member States may change the assessment of the situation at any moment (a 17 previously non-cooperating returnee may change his/her attitude and accept an offer for assisted voluntary departure) and grant a period for voluntary departure even though there was initially a risk of absconding.

IV. Practical implementation of Article 7 The practical implementation of Article 7 raises legal and practical problems in cases 18 where the third-country national does not return by air directly to his or her home country but intends to leave the EU, transiting by land through the territory of other Member States. A returnee who leaves the territory of the EU by land within the period for voluntary departure does not have any valid visa or other permission to transit through other Member States to his/her country of origin and therefore runs the risk of being apprehended and to be made subject of a second return decision issued by the transit State. This runs contrary to the policy objective of the Directive to encourage voluntary departure. The Directive does not regulate this situation and does not give the returnee a right to stay in a transit Member State. An approach, expressly developed and recommended by the Commission is for 19 transit Member States to recognise return decisions issued by the first Member State in accordance with Annex 39 to the Schengen Handbook.73 According to this approach, the transit Member State may recognise the return decision including the period for voluntary departure granted by the first Member State and may allow the returnee to transit on the basis of the recognised decision and the recognised period for voluntary departure. This approach has the advantage that the transit State is not obliged to issue a new return decision and that it can ask the first Member State to reimburse all cost related to removal if the returnee overstays illegally in the transit State and needs to be removed at the cost of the transit State.74 As regards transit by air, Directive 2003/110/EC75 already provides for a legal frame 20 on cooperation between the competent authorities at Member State airports of transit with regard to both escorted and unescorted removal by air. The term ‘unescorted removal’ in this Directive (which was adopted five years before the Return Directive) may be interpreted as also covering ‘voluntary departure’ within the meaning of the Return Directive and this legal instrument (Directive 2003/110/EC) may therefore also be used when organising transit by air in the context of voluntary departure.

Article 8 Removal 1. Member States shall take all necessary measures to enforce the return decision if no period for voluntary departure has been granted in accordance with Article 7(4) or 72

Peers et al. (eds), EU Immigration and Asylum Law, p. 496. Annex 39 to the Practical Handbook for Border Guards (Schengen Handbook): ‘Standard form for recognising a return decision for the purposes of transit by land’, issued by Commission in September 2011. 74 Commission Return Handbook, p. 38. 75 Directive 2003/110/EC (OJ L 2003 L 321/26) on assistance in cases of transit for the purpose of removals by air. 73

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if the obligation to return has not been complied with within the period for voluntary departure granted in accordance with Article 7. 2. If a Member State has granted a period for voluntary departure in accordance with Article 7, the return decision may be enforced only after the period has expired, unless a risk as referred to in Article 7(4) arises during that period. 3. Member States may adopt a separate administrative or judicial decision or act ordering the removal. 4. Where Member States use – as a last resort – coercive measures to carry out the removal of a third-country national who resists removal, such measures shall be proportionate and shall not exceed reasonable force. They shall be implemented as provided for in national legislation in accordance with fundamental rights and with due respect for the dignity and physical integrity of the third-country national concerned. 5. In carrying out removals by air, Member States shall take into account the Common Guidelines on security provisions for joint removals by air annexed to Decision 2004/573/EC. 6. Member States shall provide for an effective forced-return monitoring system. Content I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. General rules – Article 8(1) and (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. One/two-step procedure – Article 8(1) and (2). . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Removal by air – Article 8(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Forced-return monitoring – Article 8(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. General remarks 1

The provision deals with the follow-up to return decisions by obliging Member States to enforce such decisions whilst, at the same time, prescribing that compliance with the principle of proportionality and respect for the fundamental rights and dignity of the third country national concerned must always be assured. Coercive measures may only be used as a measure of last resort.

II. Drafting history 2

The provision has been considerably redrafted during negotiations, following Councils opposition to the obligatory two-step approach initially proposed by the Commission (see above Article 6 MN 2). Article 8(1) to(3) take up elements contained in Article 7 (‘Removal Order’) of the proposal and Article 8(4) and (5) correspond to Article 10 (‘Removal’) of the proposal. Article 8(6) (forced-return monitoring) was not contained in the proposal at all. It derives directly from an EP request, inspired by the wording of Council of Europe Guideline 20.1.76

76 ‘20 Guidelines on forced return’ adopted by the Council of Europe Committee of Ministers on 4.5.2005; Guideline 20 – Monitoring and remedies.

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III. Removal 1. General rules – Article 8(1) and (4) Article 8(1) fixes an objective: ‘enforce the return decision’, which should be achieved 3 in an effective and proportionate manner with ‘all necessary measures’, whilst leaving the concrete modalities (the ‘how’) up to Member State legislation and administrative practice.77 Article 8(4) and recital 13 clarify that the use of coercive measures to carry out removal is subject to the principle of proportionality. Borderline between voluntary departure and removal: Return is a broad notion and 4 covers the process of going back to a third country in compliance (voluntary or enforced) with an obligation to return. Removal is much narrower. It means enforcement of the obligation to return, namely the physical transportation out of the Member State. The ECJ has already highlighted in El Dridi78 that the Directive foresees ‘a gradation of the measures to be taken in order to enforce the return decision, a gradation which goes from the measure which allows the person concerned the most liberty, namely granting a period for his voluntary departure, to measures which restrict that liberty the most, namely detention in a specialised facility’. In practice there are frequently cases which contain both elements of enforcement (such as detention) and of voluntariness (subsequent voluntary departure without need of physical force). In accordance with the principle of proportionality, Member States are obliged to use – at all stages of the procedure – the least intrusive measures. This implies that in certain circumstances, such as in cases in which hitherto non-cooperating returnees change their attitude and demonstrate credibly79 their willingness to cooperate and to depart voluntarily, Member States may have to allow for voluntary departure instead of removal. Imprisonment as a criminal law measure for migration related offences can never 5 be ‘a necessary measure’ with the meaning of the Directive. The only permitted way of deprivation of liberty in the return context is the imposition of detention for the purpose of removal under Article 15.80

2. One/two-step procedure – Article 8(1) and (2) A removal order may either be issued together with the return decision (one-step 6 procedure) or separately (two-step procedure). In those cases in which return decision and removal order are issued together in a one-step procedure, it must be made clear – in those cases in which a period for voluntary departure is granted – that removal will only take place if the obligation to return within the period for voluntary departure has not been complied with. In view of the obligation of Member States to always respect the principle of non-refoulement, the removal (physical transportation out of the Member State) cannot go to an unspecified destination but only to a specified country of return (see above Article 3 MN 20). 77 ECJ, Achughbabian, C-329/11, EU:C:2011:807, para 36: ‘… the expressions ‘measures’ and ‘coercive measures’ contained therein (in Article 8(1) and (4) of the Return Directive) refer to any intervention which leads, in an effective and proportionate manner, to the return of the person concerned.’ 78 ECJ, El Dridi, C-61/11 PPU, EU:C:2011:268, para 41. 79 E. g. by cooperating with consular authorities in view of obtaining the necessary papers for return. 80 ECJ, Achughbabian, C-329/11, EU:C:2011:807, para 37: ‘… the imposition and implementation of a sentence of imprisonment during the course of the return procedure provided for by Directive 2008/115 does not contribute to the realisation of the removal which that procedure pursues, namely the physical transportation of the person concerned outside the Member State concerned. Such a sentence does not therefore constitute a ‘measure’ or a ‘coercive measure’ within the meaning of Article 8 of Directive 2008/115.’

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3. Removal by air – Article 8(5) According to Article 8(5), Member State shall take into account the Common Guidelines on security provisions for joint removals by air annexed to Decision 2004/573/EC81 in the context of all removals by air, and not just – as originally foreseen by Decision 2004/573/EC – in the context of joint removals. Some parts of these Guidelines are by their nature designed to apply to joint flights only, such as the rules related to the role and distribution of tasks of organising and participating Member States. These cannot be applied in the purely national context. All other parts of the Guidelines must, however, be followed also in purely national removal operations. 8 Escorting of returnees by airline security personnel or hired outside personnel is in principle compatible with Article 8. Member States have, however, an overall responsibility for the conduct of the removal operation (issuing of removal order and proportionate use of coercive measures/escorting). Section 1.2.3 of the abovementioned Guidelines provide: ‘When a … Member State makes use of private-sector escorts, the authorities of that Member State shall provide for at least one official representative on board the flight’. This can be taken as an indication that Member States have a general obligation to maintain a supervising role in all cases of outsourcing of removal and that the use of airline security personnel or hired outside staff for escorting purposes is not excluded, but must be controlled and flanked by the presence of at least one Member State official. 9 This general supervising role of Member State authorities also applies in the context of removal operations carried out by a country of destination (third-country authorities sending a plane to the EU for repatriating ‘their returnees’): Since Member States have an overall responsibility for the conduct of the removal operation (notably as regard the issuing of removal orders; the proportionate use of coercive measures as well as forced return monitoring) it is not admissible to entirely delegate to third-country authorities the conduct of forced removal from the EU to third countries. The case can be made that the conduct of the enforcement of return decisions issued by EU authorities always needs to be carried out under supervision, control and responsibility of Member State authorities. This implies that representatives of Member State authorities must be present on board throughout the flight. 10 One of the tasks of the Agency for the Management of Operational Cooperation at the External Borders (Frontex) is to provide – subject to EU return policy and in particular subject to the Return Directive – assistance for organising joint return operations (JROs) of Member States.82 The role of Frontex is of coordinating nature, the responsibility for the concrete return procedures remains with the participating Member States, as regards ‘their’ respective returnees present on board. From a legal point of view such ‘joint return operations’ constitute a concerted carrying out of a number of individual return/removal operations (each based on a separate return decision, each subject of individual remedies and each issued in accordance with the applicable national legislation) within the context of one and the same flight. Such operations cannot be qualified as ‘collective expulsions’ within the meaning of Article 4 of Protocol 4 to the ECHR. 7

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Decision on joint flights for removal 2004/573/EC (OJ 2004 L 261/28). The role of Frontex in return issues and its compliance with fundamental rights has been strengthened via an amendment of the Frontex Regulation in 2011 (Regulation No 1168/2011 of 25 October 2011 amending Frontex Regulation (EC) No 2007/2004). A Frontex Code of Conduct (CoC) for JROs was adopted on 7 October 2013 (Decision of the Executive Director No 2013/67), focusing on effective forced return monitoring procedures and respect of returnees’ fundamental rights and dignity during return operations. 82

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IV. Forced-return monitoring – Article 8(6) Forced return monitoring is a tool which may serve the interest of both the returnee and the enforcing authorities as an inbuilt control mechanism for national day-to-day return practices.83 Effective monitoring may help to de-escalate. It allows quickly identifying and correcting possible shortcomings. It also protects enforcing authorities – who may sometimes be subject of unjustified criticism from media or NGOs – by providing unbiased and neutral reporting. Article 8(6) does not prescribe in detail, how effective forced-return monitoring systems should look like. It leaves wide margin of discretion to Member States. Based on the wording of the Directive and its context, some orientation can, however, be given: The definition of ‘return’ in Article 3(3) refers to the ‘process’ of going back to a thirdcountry and thus covers more stages than just the phase of the actual physical transfer out of the European Union, it can therefore be argued that forced-return monitoring is to be understood as covering all activities undertaken by Member States in the run-up and aftermath of a removal, including the pre-return phase, the pre-departure phase, the inflight procedure, a possible transit phase and the arrival and reception of the returnee in the country of return. It also implies that post-return monitoring (the period following reception of the returnee in a third country) is not covered. According to recital 13, Member States can rely on various possibilities to establish such monitoring system. Recital 3 expressly refers to the ‘Twenty Guidelines on forced return’ of the Committee of Ministers of the Council of Europe of 4 May 2005 which – in Guideline 20 as well as in the comments attached thereto – clarify84 and illustrate the philosophy behind forced return monitoring as aiming at ‘reinforcing the accountability of those responsible for implementing and facilitating ‘independent investigation’ against alleged ill-treatment. Even though there is no express reference to ‘independence’ in Article 8(6), it can reasonably be argued from this context that in order to be effective, monitoring systems in accordance with Article 8(6) need to be composed of organisations or bodies different from the authorities enforcing return (‘nemo monitor in res sua’). This interpretation implies that public bodies (such as a national Ombudsman or specially assigned committees composed of members who enjoy safeguards of independence) may act as monitor. It also implies that it would be problematic to assign a monitoring role to a subsection of the same administration which also carries out return/removals. The case law of the ECtHR on the independence and impartiality of tribunals under Article 6(1) ECHR85 may provide interpretative inspiration on the notion of ‘independence’ also in this different context. The monitoring system foreseen by Article 8(6) must be more than a ‘basket’ of the procedural safeguards and review possibilities already available under other Articles of the Return Directive and corresponding national law, otherwise Article 8(6) would have no meaning and no added value. The mere existence of administrative and judicial remedies already available under other Articles of the Directive can therefore not be considered as forced-return monitoring system. In the draft Commission Return Handbook,86 further indications are given: There is no automatic obligation of States to finance all costs incurred by the monitor (such as 83

Commission Return Handbook, p. 48. These ‘Twenty Guidelines’ were already expressly recognised by the ECJ in El Dridi, C-61/11, EU:C:2011:268, para 43, as a privileged tool of interpretation of the provisions of the Return Directive. 85 Grabenwarter, ECHR commentary, Article 6, p. 113–127. 86 Commission Return Handbook, p. 49. 84

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staff costs), but Member States are obliged that – overall – a forced return monitoring is up and running (‘effet utile’); Article 8(6) does not imply an obligation to monitor each single removal operation. A monitoring system based on spot checks and monitoring of random samples may be considered sufficient as long as the monitoring intensity is sufficiently close to guarantee overall efficiency of monitoring; Article 8(6) does not imply a subjective right of a returnee to be monitored. 17 As regards the possible ways of complying with the obligation to set up an effective forced-return monitoring system the March 2014 Commission Communication on EU Return Policy87 reported: ’ …. the Return Directive has been a driver for change in forced return monitoring. …. In those Member States with a monitoring body in place, there tends to be a broad split with monitoring done by civil society (human rights NGOs), Ombudsmen or authorities with ties to a national Ministry. Monitoring systems are provided for either by law or by cooperation agreement. The evaluation demonstrates that the Return Directive has had substantial impact in the establishment of return monitoring bodies and that there are on-going developments as monitoring systems are becoming more established. These monitoring bodies will play an important role as an inbuilt control mechanism for national day-to-day return practices.’

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The Frontex Code of Conduct (CoC) for joint return operations (JROs)88 foresees that the monitor (an independent outside observer who frequently represents an NGO or another independent monitoring body entrusted by a Member State with forced return monitoring tasks under Article 8(6) of the Directive) will be given all necessary information in advance of the operation and will be involved in the return process from the pre-return phase (internal briefings) until the post-return phase (debriefing). He/she will have access to all information and physical access to any place he wishes. The observations/reports of the monitor will be included in the reporting on the JRO. Even though this is not expressly required under current legislation, the Commission considers89 that given the visibility and sensitivity of such operations, an independent monitor should be present in each JRO.

Article 9 Postponement of removal 1. Member States shall postpone removal: (a) when it would violate the principle of non-refoulement, or (b) for as long as a suspensory effect is granted in accordance with Article 13(2). 2. Member States may postpone removal for an appropriate period taking into account the specific circumstances of the individual case. Member States shall in particular take into account: (a) the third-country national’s physical state or mental capacity; (b) technical reasons, such as lack of transport capacity, or failure of the removal due to lack of identification. 3. If a removal is postponed as provided for in paras 1 and 2, the obligations set out in Article 7(3) may be imposed on the third-country national concerned.

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Content I. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Postponement of removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. General remarks The provision complements Article 8 by defining the cases in which Member States 1 ‘shall’ (Article 9(1)) or ‘may’ (Article 9(2)) postpone the enforcement of the obligation to return of a third-country national. Its wording only relates to removal, i. e. to cases where voluntary departure (Article 7) is not possible or appropriate. The circumstances described in this Article may, however, also justify an extension of the period for voluntary departure under Article 7(2).

II. Drafting history The provision corresponds to Article 8 of the Commission proposal and preserves the 2 main ideas of it but has been redrafted during the negotiating process. The provisions related to the protection of minors from removal which had been in Article 8 of the proposal were moved to the ‘new’ Article 10 (Return and removal of unaccompanied minors).

III. Postponement of removal Article 9(1) defines the two categories of cases in which Member States’ competent 3 authorities are under an obligation (‘shall’) to postpone removal. The first such category relates to cases where removing the person concerned would violate the principle of non-refoulement which is already mentioned in Article 5 (see above Article 5 MN 9) The second category concerns all those cases where suspensory effect is granted as part of an appeal against a decision related to return in accordance with Article 13(2). This provision expressly confirms the self-evident:90 The administration of a State whose courts have grant suspensive effect must not undermine such decisions by carrying out removal contrary to the judicial orders. Article 9(2) explicitly allows Member States (‘may’) to postpone removal also in other 4 cases. Member States may postpone removal for an appropriate period taking into account the specific circumstances of the individual case. The catalogue of possible reasons is open and allows Member States to react flexibly to any newly arising or newly discovered circumstances justifying postponement of removal. The concrete examples listed in the Directive (physical or mental state of the person concerned; technical reasons, such as lack of availability of appropriate transport facilities) are indicative examples. Member States may provide also for further cases in their national implementing legislation and/or administrative practice. Article 9 remains silent as to how to postpone removal. The concrete modalities for 5 postponing the removal are therefore up to Member States’ legislation and administrative practice. This corresponds to the general discretion left by the Directive to Member States (see above Article 6 MN 33–34) to combine several different decisions related to return within one administrative act for reasons of administrative efficiency, 90

ECJ, Abdida, C-562/13, EU:C:2014:2453, paras 56–57.

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provided the relevant safeguards and provisions for each individual decision are respected. It can be argued that a postponement decision is covered by the notion of ‘decision on removal’ under Article 12(1) and that the procedural safeguards contained in chapter III are therefore applicable. Member States must not bypass respect for these safeguards by granting ‘de facto’ postponement instead of issuing a proper postponement decision. In practice this is particularly relevant for the application of Article 14 to so called ‘non-removable returnees’ (see below MN 7 and Article 14 MN 12). In Abdida the Court expressly considered a situation of ‘de-facto postponed removal’ as being covered by Article 9 and as falling within the scope of application of Article 14.91 6 Difference between period for voluntary departure and postponement of removal: Article 7 (voluntary departure) provides for a ‘period of grace’ in order to allow for an orderly and well prepared departure. It only relates to those returnees who are expected to comply voluntarily with a return decision. Article 9 (removal) relates to those cases in which the obligation to return must be enforced by the State (because voluntary departure is not possible or indicated). In substance, the circumstances calling for a prolonged period of voluntary departure and a postponement of removal may be similar or identical. 7 Legal status pending postponed removal: Pending suspended removal the returnee benefits from the ‘safeguards pending return’ listed in Article 14 (written confirmation of postponed obligation to return and some basic safeguards, such as access to emergency health care and family unity). The returnee is, however, not considered to be legally staying in a Member State, unless a Member States decides – in accordance with Article 6(4) – to grant a permit or a right to legal stay to the returnee (in which case the Directive would not apply any more). The Directive does not provide for the possibility for granting an ‘in-between’ status, falling both outside the legal regime of the Return Directive and outside the legal regime for legally staying third country nationals: any third-country present on the territory of an EU Member State is at a given moment either staying legally or illegally. There is no third option (see above Article 3 MN 5). 8 Designation to reside at a specific place pending postponed removal: By referring to Article 7(3) which provides for the possibility to impose on the third-country national concerned certain obligations aimed at avoiding the risk of absconding, Article 9(3) allows the competent authorities to continue monitoring the situation during postponed removal. Based on this provision, Member States may, for instance, impose – for the duration of the period of postponement – the deposit of an adequate financial guarantee, submission of documents or the obligation to stay at a certain place. Such measures may be imposed for as long as and to the extent that they can still be considered a ‘necessary measure’ within the meaning of Article 8(1). Unlike for detention, there are no absolute maximum time limits foreseen for the application of such measures. If, however, the nature and intensity of such measures are similar or equal to deprivation of liberty (e. g. the imposition of an unlimited obligation to stay at a specific facility, without possibility to leave such facility) it may be considered as a de facto detention and the safeguards of chapter IV, in particular the time limits foreseen in Article 15(5) and (6), apply.

Article 10 Return and removal of unaccompanied minors 1. Before deciding to issue a return decision in respect of an unaccompanied minor, assistance by appropriate bodies other than the authorities enforcing return shall be granted with due consideration being given to the best interests of the child. 91

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ECJ, Abdida, C-562/13, EU:C:2014:2453, paras 57–59.

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2. Before removing an unaccompanied minor from the territory of a Member State, the authorities of that Member State shall be satisfied that he or she will be returned to a member of his or her family, a nominated guardian or adequate reception facilities in the State of return. Content I. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 III. Return and removal of unaccompanied minors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1. Assistance by appropriate bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 2. Return to family member, guardian or reception facility . . . . . . . . . . . . . . . . 10

I. General remarks Article 10 specifically deals with some important aspects of the return of unaccom- 1 panied minors. The provision is based on the underlying understanding that, in principle, returning and removing unaccompanied minors is admissible but subject to specific restrictions and safeguards designed to preserve the best interest of the child (see above Article 5 MN 6).

II. Drafting history Article 10 was not contained in the Commission proposal. The creation of a separate 2 Article on unaccompanied minors was actively promoted by the EP in order to emphasise its particular concern about unaccompanied minors. In substance, this Article consists of two elements: Article 10(1) (assistance to unaccompanied minors) which was not contained in the Commission proposal at all and Article 10(2) (return to family member, guardian or reception facility) which took over the minor-related wording from Article 8 (postponement) of the Commission proposal. The wording of Article 10 was directly inspired by Guideline 2(5) of the Council of 3 Europe Guidelines92 on forced return which provides ‘Before deciding to issue a removal order in respect of a separated child, assistance – in particular legal assistance – should be granted with due consideration given to the best interest of the child.’ The EP had proposed the wording ‘assistance by appropriate social services’. Council preferred the wording ‘appropriate assistance’ and the compromise found in the end was ‘Before deciding to issue a return decision …. assistance by appropriate bodies other than the authorities enforcing return shall be granted’.

III. Return and removal of unaccompanied minors The Directive applies to any illegally staying third-country national including minors 4 and unaccompanied minors, and provides for a number of safeguards which have to be respected by Member States in this respect. Any Member State action must take into 92 ‘20 Guidelines on forced return’ adopted by the Council of Europe Committee of Ministers on 4.5.2005; Guideline 2 – Adoption of the removal order. The comments thereto (on para 5) set out: ‘The first sentence of the paragraph, concerning the removal of separated children, derives from Articles 3(1) and 24 of the Convention on the Rights of Child, …. The requirement that the child be provided with legal and other appropriate assistance is formulated in Article 37 (d) of the Convention on the Rights of the Child in all the situations where the child is deprived from his liberty.’

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account as key consideration the ‘best interest of the child’ (Article 5). This obligation under Article 5, read in conjunction with recitals 6 and 22, can serve as a valid justification to require Member States to carry out an invidualised assessment, taking into consideration the best interest of the child and his or her particular needs, the situation in the family and the situation and reception conditions in the concrete country of return in any return procedure involving minors. 5 The Directive itself does not define the term ‘minor’ and ‘unaccompanied minor’. Based on a systematic interpretation of the EUs immigration and asylum acquis, it is legitimate and appropriate to use the definitions provided in Article 2(d) and (e) of the Asylum Reception Conditions Directive 2013/33/EU): ‘minor’ means a third-country national or stateless person below the age of 18 years; ‘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. 6 The Directive contains no provisions on age assessment. Based on a systematic interpretation of the EUs immigration and asylum acquis, reference can be made to the provisions fixed in Article 25(5) of the Asylum Procedures Directive 2013/32/EU as well as to related guidance93 developed by the European Asylum support Office (EASO).

1. Assistance by appropriate bodies Article 10(1) is a far reaching horizontal provision, insofar as it provides for a binding obligation under Union law, to grant assistance to any unaccompanied third-country minor who will be subject to a return procedure. This obligation covers in principle any unaccompanied third-country minor who does not fulfil the conditions for entry, stay or residence in a Member State and who will therefore – in accordance with Article 6(1) – be made subject of a return procedure once authorities (border guards, immigration officials, police) become aware of the illegal stay. Assistance by ‘appropriate bodies’ should start at the earliest point of time. It can be argued that this implies a timely age assessment upon apprehension. 8 The wording ‘appropriate bodies other than the authorities enforcing return’ is to be interpreted broadly. According to the draft Commission Return Handbook,94 the ‘appropriate body’ should be separate from the enforcing authority and could either be a governmental body (possibly a separate service within the same ministry) or a nongovernmental institution or a combination of both systems, providing for multidisciplinary cooperation between government supported and non-governmental guardian- or tutorship systems. Their ‘appropriateness’ is to be assessed by the competent authority in the light of objective criteria, such as previous activities and expertise in this area. Bodies responsible for the care/protection of children shall conform with the standards established in the areas of safety, health, suitability of staff and competent supervision. 9 Article 10(1) remains silent as to the kind of ‘assistance’ to be granted. This term is to be interpreted broadly and does not only entitle any appropriate body to participate in the return procedure in a merely observing function. In line with the Council of Europe Guideline 2(5) (see MN 3 above), the wording also includes active support measures such as legal counselling. Assistance should therefore cover legal assistance but must not be limited to it. Other aspects expressly mentioned by the Directive, such 7

93 94

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European Asylum Support Office (EASO), Age assessment practice in Europe (2014). Commission Return Handbook, p. 52.

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as provision of necessary medical assistance and health care, contact with family, access to basic education as well as pertinent rights under the Convention of the Rights of the Child should also be addressed. In this light specific emphasis should be given to the need to discuss with the minor in advance all decisions affecting him/her.

2. Return to family member, guardian or reception facility The wording of Article 10(2) only covers situations where the unaccompanied minor 10 is ‘removed’ from the territory of a Member State. It is not applicable to cases where the child is leaving voluntarily. Taking into account, however, Member States obligations deriving from the requirement to respect the best interest of the child, it is legitimate to expect Member States to also assess the situation in the family and the situation and reception conditions in the concrete country of return in cases of return procedures leading to voluntary departure. The assessment on the part of the competent authorities as concerns the fulfilment of 11 the criteria in Article 10(2) must be carried out in accordance with relevant provisions of national law, taking into account the principle of proportionality. The term ‘adequate reception facilities’ implies that the reception facilities in the 12 State of return should comply with child-specific standards going beyond those of general border police facilities. The adequateness of reception facilities in the country of return needs to be assessed on a case by case basis, taking into account the individual circumstances and age of the returned minor. A mere reception by the border police in the country of return without any envisaged follow-up measures can certainly not be considered as ‘adequate reception’.

Article 11 Entry ban 1. Return decisions shall be accompanied by an entry ban: (a) if no period for voluntary departure has been granted, or (b) if the obligation to return has not been complied with. In other cases return decisions may be accompanied by an entry ban. 2. The length of the entry ban shall be determined with due regard to all relevant circumstances of the individual case and shall not in principle exceed five years. It may however exceed five years if the third-country national represents a serious threat to public policy, public security or national security. 3. Member States shall consider withdrawing or suspending an entry ban where a third-country national who is the subject of an entry ban issued in accordance with para 1, second subpara, can demonstrate that he or she has left the territory of a Member State in full compliance with a return decision. Victims of trafficking in human beings who have been granted a residence permit pursuant to 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(11) shall not be subject of an entry ban without prejudice to para 1, first subpara, point (b), and provided that the third-country national concerned does not represent a threat to public policy, public security or national security. (11)

OJ L 261, 6.8.2004, p. 19.

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Member States may refrain from issuing, withdraw or suspend an entry ban in individual cases for humanitarian reasons. Member States may withdraw or suspend an entry ban in individual cases or certain categories of cases for other reasons. 4. Where a Member State is considering issuing a residence permit or other authorisation offering a right to stay to a third-country national who is the subject of an entry ban issued by another Member State, it shall first consult the Member State having issued the entry ban and shall take account of its interests in accordance with Article 25 of the Convention implementing the Schengen Agreement(12). 5. Paras 1 to 4 shall apply without prejudice to the right to 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 persons as refugees or as persons who otherwise need international protection and the content of the protection granted(13), in the Member States. Content I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Entry ban . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Reasons for issuing entry bans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Length of entry bans – Article 11(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Standard cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Public order cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Withdrawal/shortening/suspension of entry bans – Article 11(3) . . . . . 4. Consultation between Member States – Article 11(4) . . . . . . . . . . . . . . . . . . . 5. Access to international protection in the EU – Article 11(5). . . . . . . . . . . 6. Exchange of information between Member States/link to SIS. . . . . . . . . . 7. ‘Historic’ entry bans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. National rules penalising breach of entry bans . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 5 9 10 10 13 15 20 23 24 27 28

I. General remarks 1

This Article was one of the most controversial provisions of the whole Directive, given that national practices in Member States on migration related entry bans varied significantly. The systematic imposition of EU-wide entry bans adds a European dimension to the return process and serves essentially two purposes: to strengthen the credibility of the common EU immigration policy and to set further incentives for voluntary departure. Underlying this Article is the political message that those who disregard EU or national immigration rules will be banned from re-entering the whole of the EU for a certain period of time.

II. Drafting history 2

The Commission proposal (Article 9) provided for a differentiated approach: in certain qualified cases, i. e. in those cases in which it is necessary to issue a removal order (existence of a risk of absconding or non-compliance with the obligation to return) Member States are obliged to issue an entry ban. In all other cases, Member States may do so. The positions of the EP and Council were diametrically opposed: (12) (13)

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OJ L 239, 22.9.2000, p. 19. OJ L 304, 30.9.2004, p. 12.

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Council called for a ‘shall’ clause in all cases, whilst the EP pleaded for a general ‘may’ clause. The compromise found in the end was to go back – in essence – to the Commission proposal. As regards the length of entry bans (up to 5 years in normal cases) the final text 3 stayed also similar to the Commission proposal. One issue which was left open – already in the Commission proposal and later on in the negotiations – was the maximum period for public order entry bans (second sentence of Article 11(2)). This was certainly no omission, but rather an anticipative recognition of the fact that it would be very hard to reconcile the views of Member States (some of which provided for the possibility of life-long or unlimited entry bans under existing national legislation in public order cases) and the EP on this issue. The vague term ‘more than 5 years’ therefore remained untouched throughout the negotiations. The compensation which Council had to give the EP for accepting the obligation to issue entry bans (the ‘shall’ clause in Article 11(1)) was a reinforced Article 11(3) with a catalogue of specific cases in which Member States should withdraw or suspend entry bans.95 The Commission entered a statement to the minutes of the Council meeting 4 adopting the Directive in which it committed itself to propose, at the occasion of the next review of the second Generation Schengen Information System (SIS II),96 an obligation to register in the SIS II all entry bans issued under the Directive (see below MN 24–26).

III. Entry ban The definition of ‘entry ban’ is set out in Article 3(6). It is clear from this definition 5 and a major added value of the Directive that entry bans apply to the territory of all Member States bound by the Return Directive (i. e.: all EU Member States except UK and Ireland, plus Switzerland, Norway, Iceland and Liechtenstein). As a consequence it is as a general rule not possible anymore to issue under the Directive ‘national’ entry bans, prohibiting entries and stays solely to the territory of the Member State issuing the return decision. National legislation must foresee that entry bans issued in connection with a return decision prohibit entry and stay in all Member States. In practice many Member States have foreseen an obligation to enter return related entry bans systematically into the SIS. The rules on return related entry bans under the Directive leave unaffected entry 6 bans issued for purposes not related to migration, such as entry bans related to thirdcountry nationals who have committed serious criminal offences or for whom there is a clear indication that there is an intention to commit such an offence (Article 24(2) SIS II Regulation (EC) No 1987/2006) or entry bans constituting a restrictive measure adopted in accordance with Chapter 2 of Title V of TEU, including measures implementing travel bans issued by the United Nations Security Council. Normally, entry bans are to be adopted together with a return decision. This is, 7 however, not a strict formal requirement since in certain cases expressly envisaged by the Directive it will not be possible to issue an entry ban together with the return decision. The most frequent case may be the imposition of an entry ban to returnees who have not complied with the obligation to return within the period for voluntary departure: In this case, the entry ban may have to be imposed at a later stage as an ancillary and subsequent element of an already issued return decision. The term 95 96

Lutz, The Negotiations on the Return Directive, p. 55–57. Due in 2016 according to Article 24(5) of Regulation (EC) no. 1987/2006 (SIS II review clause).

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‘accompanied’ in Article 11(1) therefore has to be interpreted as requiring in substance a connection between return decision and entry ban decision. It is, however, not necessary to take both decisions within one act. 8 A return decision including – if necessary – an entry ban should in principle also be adopted upon departure if an illegally staying third-country national is apprehended at the EU external border when leaving the EU territory (see above Article 6 MN 7).

1. Reasons for issuing entry bans 9

According to Article 11(1) there are 2 categories of cases in which it is obligatory for a return decision to be accompanied by an entry ban: if no period for voluntary departure has been granted (Article 7(4)), or if the obligation to return has not been complied with within the period for voluntary departure granted in accordance with (Article 7(1)).97 A ‘may’ clause in the second sentence clarifies that the competent authorities can also issue an entry ban in other situations, depending on the specific circumstances of the individual case. This means that the issuing of entry bans under this Directive is not limited to forced returns and that entry bans may also be issued, in principle, in cases of voluntary departure. According to the 2013 evaluation of the practical application of the Return Directive,98 twelve States (Austria, Cyprus, Germany, Estonia, Greece, Spain, Italy, Lithuania, Malta, Poland, Portugal and Iceland) have opted to automatically impose an entry ban with all return decisions. The other Member States do not impose an entry ban in all cases.

2. Length of entry bans – Article 11(2) a) Standard cases. The length of the entry ban is to be decided in the light of all relevant circumstances of the specific individual case (Article 11(2) in conjunction with recital 6). As a rule it should not exceed 5 years. In this context recital 14 clarifies that particular account should be taken of the fact that the third-country national concerned has already been subject of more than one return decision or removal order or has entered the territory of a Member State during an entry ban. When determining the concrete length of the entry ban, Member States are bound to carry out an individual examination of all relevant circumstances and to respect the principle of proportionality. A Member State might envisage varying timeframes for typical case categories as general guidance for its administration, but it must be assured that each case will be assessed individually in accordance with the principle of proportionality. Member State may lay down in their national laws or administrative regulations the general criteria which will be taken into account for individually determining the length of the entry ban in accordance with its Article 11(2). 11 No unlimited entry bans: The length of the entry ban is a key element of the entryban decision. It must be determined ex-officio in advance in each individual case. The ECJ expressly confirmed in Filev and Osmani99 that it is incompatible with Article 11 to issue unlimited entry bans or to make limitation subject of an application requirement. 12 The moment at which the clock starts ticking (the entry ban starts applying) needs to be determined in advance: normally the clock should start ticking100 from the moment 10

97 According to some authors (see: Peers et al (eds), EU Immigration and Asylum law, p. 499) Member States are free to install a more nuanced system by which entry bans are not automatically imposed but are assessed on a case by case basis even in the two obligatory cases mentioned in para 1. This interpretation finds little support in the wording of para 1 which provides for a clear ‘shall clause’. 98 Matrix, Evaluation on the application of the Return Directive, section 2.19. 99 ECJ, Filev and Osmani, C-297/12, EU:C:2013:569, paras 27 and 34. 100 Commission Return Handbook, p. 60.

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of departure or removal to a third country and not from the issuing date of the entry ban, since the EU entry ban cannot develop yet its effect in a situation in which the person has not yet left EU territory. b) Public order cases. In cases where the third-country national represents a serious 13 threat to public policy, public security or national security, Article 11(2) explicitly allows for entry bans longer than 5 years without specifying, however, a maximum period or upper ceiling. The Directive itself does not define the term ‘public policy, public security or national security’ and given the different context, it is not possible to automatically apply the interpretation of the public order clauses given by the ECJ in the context of other migration related directives (see above Article 7 MN 15). Since any threat to public policy is ipso facto serious, the express mentioning of the word ‘serious’ seems to have rather declaratory value.101 Factors which may be taken into account by Member States for determining a threat to public order within the meaning of this provision may be criminal offences as well as serious administrative offences (repeated use of false identity documents; repeated and deliberate violations of migration law). None of these factors can, however, be considered as constituting automatically and per se a public order threat: Member States are always bound to carry out an individual examination of all relevant circumstances and respect the principle of proportionality. The length of public order entry bans needs to be individually determined, taking 14 into account the seriousness of the offences committed by the third-country nationals, the linked risks to public policy, public security or national security and the individual situation of the person concerned. The principle of proportionality must be respected in any case. A systematic issuing of life-long entry bans in all public order cases (without making a differentiation in accordance with the gravity of the offences and risks) would be contrary to the Directive. A Member State may envisage varying timeframes for typical case categories.

3. Withdrawal/shortening/suspension of entry bans – Article 11(3) Shortening of entry bans: The possibility for Member States to withdraw an entry 15 ban under Article 11(3) can be interpreted as covering also a partial withdrawal (=shortening) of an entry ban, even though the wording of the provision only mentions ‘withdrawal or suspension’. Article 11(3) provides for a number of exceptions: The possibility to withdraw or 16 shorten or suspend an entry ban in those cases in which a returnee has left the territory of a Member State in full compliance with a return decision (subpara 1) is designed as an incentive to encourage voluntary departure. Member States have to provide a possibility in their national legislation and administrative practice to apply for withdrawal or shortening of an entry ban in these circumstances in order to give a useful meaning to this provision. Such procedures should be easily accessible for the returnee and practically operational. Different possibilities exist for allowing the returnee to provide evidence as regards his/her departure from EU territory, such as: an exit stamp in the returnee’s passport, data in national border data systems or reporting back of the returnee at a consular representation of a Member State in a third country.102 Victims of trafficking who had been previously granted a residence permit in 17 accordance with Directive 2004/81/EC should not receive an entry ban, unless the person concerned did not comply with an obligation to return within a period for voluntary departure or if the person concerned represents a threat to public policy. This 101 102

Lutz, The Negotiations on the Return Directive, p. 56. Commission Return Handbook, p. 60.

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rule only applies to periods of illegal stay following immediately a legal stay covered by Directive 2004/81/EC. It does not create a ‘life-long’ exemption. 18 Member States are free not to issue entry bans in individual cases for humanitarian reasons (subpara 3). The formulation of this exception is broad and allows Member States not to issue entry bans at all or to withdraw or suspend existing entry bans. Given the optional character of this clause, its practical scope depends entirely on the way in which Member States have transposed the provision in their national law and make use of it in their administrative practice. 19 In cases of humanitarian disasters (such as earthquakes or other natural disasters or armed conflicts) in third countries which may lead to a mass influx of displaced persons, formal procedures for withdrawal of entry bans in individual cases may take too long and are not feasible. Therefore the possibility exists to provide for a horizontal suspension or withdrawal of entry bans related to the concerned groups of persons (subpara 4).

4. Consultation between Member States – Article 11(4) Before a residence permit can be issued to a third-country national to whom another Member State issued an entry ban, the latter has first to be consulted in accordance with Article 25 of the Convention Implementing the Schengen Agreement (SIC)103. The reasons underlying an existing entry ban must be considered and taken into account by the Member State considering issuing a residence permit. Article 25 SIC is a directly applicable provision and can be applied by Member States without transposing national legislation. Only the Member State issuing the entry ban can lift the entry ban. 21 If another Member State decides to issue a residence permit to the same person (after having carried out consultation with the Member State which had issued the entry ban), the Member State who had issued the entry ban is obliged to withdraw the alert but may nevertheless put the third-country national on its national list of alerts. This specific authorisation to maintain purely national entry bans is an exception to the general rule according to which Member States are not supposed to issue purely national entry bans for cases falling under the Directive (see above MN 5). 22 Those Member States which do not yet fully apply Schengen rules and therefore cannot (yet) directly apply Article 25 SIC, are required to follow the spirit of Article 11(4) and contact – if they become aware (through whatever source of information including information from the applicant) that a person is subject of an entry ban issued by another Member State – the authorities which issued the entry ban. Before issuing a residence permit to the person, the Member State should seek to ‘take account of the interest’ of the Member State which issued the entry ban. 20

5. Access to international protection in the EU – Article 11(5) 23

Article 11(5) clarifies, that the provisions on return-related entry bans apply without prejudice to the right to international protection under the EU asylum acquis: This implies that previously issued entry bans under the Return Directive can never justify the return or penalisation of third-country nationals authorised to stay in the EU as applicant or beneficiary of international protection. Such entry bans have to be suspended (pending ongoing international protection procedures) or withdrawn (once international protection has been granted).

103

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OJ 2000 L 239/19; Article 25 was subsequently amended by Regulation (EU) No 265/2010.

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6. Exchange of information between Member States/link to SIS Recital 18 emphasizes the need of competent authorities to have rapid access to 24 information on entry bans issued by other Member States. To this end Member States are invited (by the recital and without corresponding provision in the text of the directive) to use the Schengen Information System (SIS) to register alerts related to entry bans issued under the Directive. Entering entry bans into the SIS is one – but not the exclusive tool – for informing other Member States. As regards those Member States which don’t (yet) have access to SIS, information exchange may be achieved through other channels (e. g. bilateral contacts). According to currently applicable legislation Member States may register alerts 25 related to entry bans issued in accordance with the Return Directive in the SIS, but are not obliged to do so. In a declaration made by Commission when adopting the Directive, the Commission stated that the review of the SIS II, envisaged under the review clause of Article 24(5) of SIS II Regulation (EC) No 1987/2006), will be an opportunity to propose an obligation to register in the SIS entry bans issued under this Directive. This review is due to take place in 2016, three years after the date of application (9 April 2013) of the SIS II Regulation. Relation between the 3-yearly review of alerts entered into the SIS (under Article 29 26 SIS II Regulation) and the length of the entry ban fixed under the Return Directive: The review of alerts entered into the SIS (under Article 29 of the SIS II Regulation) is a procedural requirement aimed at making sure that alerts are only kept for the time required to achieve the purpose for which they were entered. It does not impact the substantive decision of Member States to determine the length of an entry ban in accordance with the provisions of the Return Directive. If at the moment of the 3-yearly review an entry ban imposed under the Return Directive is still in force (e. g.: the ban was imposed for a 5 years period and was not withdrawn in the meantime) Member States may maintain the alert in the SIS for the remaining two year period if the alert is still necessary in view of the applicable assessment criteria (i. e. Article 11 of the Return Directive in conjunction with Article 29(4) of SIS II Regulation (EC) No 1987/2006).

7. ‘Historic’ entry bans In Filev and Osmani104 the ECJ expressly clarified that ‘historic’ entry bans issued 27 before the entry into force of the Directive have to be adapted in line with the standards fixed in Article 11 (maximum duration, individual assessment, obligation to withdraw/ consider withdrawing in specific circumstances) if they develop effects for the future and if they are not yet in line with the substantive safeguards of Article 11.

8. National rules penalising breach of entry bans The Directive does not prevent Member States from providing for further sanctions 28 under national law, subject to the effet utile of the Directive and the relevant case law developed by the ECJ in this regard (see above Article 1 MN 27). When doing so, Member States should make no difference between entry bans issued by their own national authorities and authorities of other Member States as this would undermine the harmonised concept of an EU entry ban provided for in the Directive.105

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Member States may declare the presence of third-country nationals who are subject of an administrative entry ban punishable as a criminal offence under criminal law and impose a fine.106 Any national measure in this field must, however, not undermine the effet utile and the harmonizing effect of the relevant provisions of the Directive and the relevant case law developed by the ECJ in this regard. In Filev and Osmani107 the ECJ highlighted that criminal sanctions for breach of an entry ban falling within the scope of the Directive are only possible if the continuation of the effects of that ban complies with Article 11(2) of the Directive. In its judgment in case Skerdjan Celaj (C-290/14), the ECJ confirmed that the Return Directive does not, in principle, preclude legislation of a Member State which provides for the imposition of a prison sentence on an illegally staying third-country national who, after having been returned to his country of origin in the context of an earlier return procedure, unlawfully re-enters the territory of that State in breach of an entry ban.

CHAPTER III PROCEDURAL SAFEGUARDS Article 12 Form 1. Return decisions and, if issued, entry-ban decisions and decisions on removal shall be issued in writing and give reasons in fact and in law as well as information about available legal remedies. The information on reasons in fact may be limited where national law allows for the right to information to be restricted, in particular in order to safeguard national security, defence, public security and for the prevention, investigation, detection and prosecution of criminal offences. 2. Member States shall provide, upon request, a written or oral translation of the main elements of decisions related to return, as referred to in paragraph 1, including information on the available legal remedies in a language the third-country national understands or may reasonably be presumed to understand. 3. Member States may decide not to apply paragraph 2 to third country nationals who have illegally entered the territory of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State. In such cases decisions related to return, as referred to in paragraph 1, shall be given by means of a standard form as set out under national legislation. Member States shall make available generalised information sheets explaining the main elements of the standard form in at least five of those languages which are most frequently used or understood by illegal migrants entering the Member State concerned. Content I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The duty to state reasons as a general principle of the EU law . . . . . . . . 2. Link to the right to be heard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 107

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General boundaries of the duty to state reasons . . . . . . . . . . . . . . . . . . . . . . . . . . Limits of non-disclosure of certain factual information . . . . . . . . . . . . . . . . . Translation of decisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Derogations applicable to a specific category of returnees . . . . . . . . . . . . . .

10 16 17 19

I. General remarks Article 12 integrates in Chapter III, covering procedural safeguards, the duty of the 1 authorities taking return, removal and entry-ban decisions to give reasons underlying those decisions.

1. The duty to state reasons as a general principle of the EU law The duty to state reasons, whose key object and purpose in the context of the 2 Directive is to ensure the protection and defence of the person concerned against a decision which adversely affects him or her,108 is a well-established principle in the EU law reflected in Article 296 TFEU and in Article 41(2)(c) CFR. Although the latter cannot be directly invoked by the third-country nationals concerned,109 the fact that the obligation to give reasons has been shaped by the substantial case-law of the CJEU, gives to it a considerable weight, moving it in the ranks of general principles of the EU law.110 Therefore, it is not surprising that Article 11 does not stand alone within the relevant EU legislation and similar, albeit not identic, provisions can be found in other legal acts concerning border checks,111 asylum,112 immigration113 or freedom of movement114. Apart from serving the transparency of the decision-making process115 and effecting 3 an initial self-check by the administration,116 the obligation to give reasons is strongly interlinked with the right to an effective remedy – Articles 12 and 13, therefore, can be regarded as the flipsides of the same principle. According to the ECJ’s settled case-law, without communicating to the person concerned the reasons upon which a given decision is based, the judicial review guaranteed by Article 47 CFR cannot be effective.117 As confirmed in the Mahdi judgment, communicating those reasons is necessary: (i) to enable the third-country national concerned to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in his applying to the court having jurisdiction, and (ii) to put that court fully in a position to carry out the review of the legality of the decision in question.118 108

ECJ, Boudjlida, C-249/13, EU:C:2014:2431, para 58. ECJ, Mukarubega, C-166/13, EU:C:2014:2336, para 44. 110 Cf. AG Kokott, Mellor, C 75/08, EU:C:2009:32, para 33. 111 Cf. Article 13(2)(2) of the Schengen Borders Code Regulation (EC) No 562/2006. 112 See Articles 9(1) and (2) of the former Asylum Procedures Directive 2005/85/EC and Articles 11(1) and (2) of the Asylum Procedures Directive 2013/32/EU. 113 See, for instance, Article 8 of the Single Permit Directive 2011/98/EU, Article 10 of the Long Term Residents’ Directive 2003/109/EC and Article 18 of the Seasonal Workers Directive 2014/36/EU. 114 Article 30 of the Free Movement Directive 2004/38/EC. 115 Craig, in Peers et al. (eds), The EU Charter, Art. 41, MN 41, 49; Kanska, ‘Towards Administrative Human Rights in the EU. Impact of the Charter of Fundamental Rights’, ELJ 10(2004), p. 320; Reneman, EU Asylum Procedures and the Right to an Effective Remedy (Hart, 2014), p. 99. This is also in line with Recital 6 of the Directive. 116 AG Kokott, Mellor. C 75/08, EU:C:2009:32, para 32. 117 ECJ, ZZ, C-300/11, EU:C:2013:363, para 53. 118 ECJ, Mahdi, C-146/14 PPU, EU:C:2014:1320, para 55. 109

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2. Link to the right to be heard The obligation to state reasons is furthermore closely intertwined with the right to be heard. According to the ECJ, since the right to be heard requires the authorities to pay due attention to the observations submitted by the person concerned so that it can examine carefully and impartially all the relevant aspects of the individual case and give a detailed statement of reasons for their decision, the obligation to state reasons is a corollary of the principle of respect for the rights of the defence.119 5 It needs to be stressed here that although there is no mention of the right to be heard in the Directive, due to the fact that such a right forms part of the aforementioned principle of respect for the rights of the defence which on its part is a general principle of EU law, it must be observed in all proceedings, even where the applicable legislation does not expressly provide for such a procedural requirement.120 6 The right to be heard guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of any decision liable to affect his or her interests adversely.121 Since return, removal and entryban decisions can be considered as such decisions, the third-country nationals concerned have to be heard before their adoption. The purpose of the right to be heard is twofold. First, as mentioned above (MN 4), it should enable the competent authority to take into account all relevant information with a view to giving detailed reasons for its decision.122 And second, it should enable the person concerned to correct an error or submit such information relating to his or her personal circumstances as will argue in favour of or against the adoption of the decision, or in favour of its having a specific content.123 7 As the Directive regulates neither the conditions under which observance of the right to be heard is to be ensured nor the consequences of the infringement of that right, in accordance with the relevant ECJ case-law, those conditions and consequences fall within the scope of national law.124 To that effect, however, the principles of equivalence and effectiveness oblige the Member States to adopt the same rules that individuals in comparable situations under national law are subject, and not make it impossible in practice or excessively difficult to exercise the right to be heard.125 4

II. Drafting history 8

Paragraph 1(1) as well as Paragraph 2 mostly correspond to the original Commission proposal.126 Continuing efforts of the Netherlands to make written decisions optional and to include in Paragraph 1 the possibility for an oral notification of the 119

Mukarubega, C-166/13, EU:C:2014:2336, para 48. ECJ, G. and R., C-383/13 PPU, EU:C:2013:533, para, 32, with reference to ECJ, M., C-277/11, EU:C:2012:744, para 86 and the case-law cited. Even though this right is listed under the right to good administration in Article 41 CFR, the latter is addressed not to the Member States but solely to the institutions, bodies, offices and agencies of the European Union and therefore, a TCN cannot derive from Article 41(2)(a) of the Charter a right to be heard in all immigration related proceedings (see ECJ, Mukarubega, C-166/13, EU:C:2014:2336, para 44). Consequently, the TCNs concerned enjoy that right not based on the Charter, but based on the fact that it is part of a general principle of EU law. 121 ECJ, Boudjlida, C-249/13, EU:C:2014:2431, para 36 and the case-law cited. 122 ECJ, Boudjlida, C-249/13, EU:C:2014:2431, paras 37–38. 123 ECJ, Boudjlida, C-249/13, EU:C:2014:2431, para 37 and the case-law cited. 124 ECJ, Mukarubega, C-166/13, EU:C:2014:2336, para 51. 125 ECJ, Mukarubega, C-166/13, EU:C:2014:2336, para 51. ECJ, G. and R., C-383/13 PPU, EU:C:2013:533, para para 35 and the case-law cited. 126 Commission Proposal, COM(2005) 391, p. 18. 120

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relevant decisions, have not been successful.127 Upon request of Sweden and Poland,128 Paragraph 1(2) providing for the possibility to limit the information on reasons in fact has been added by mainly copying Article 42(2)(c) of SIS II Regulation (EC) No 1987/ 2006.129 Paragraph 3, which did not appear in the original Commission proposal, is a result of 9 the compromise between the Council and the European Parliament with regard to an initiative coming from the Council (Presidency) to include a new article in the Directive, Article 13a on an accelerated procedure.130 The latter was supposed to apply to persons intercepted at, or close to, the borders of a Member State while trying to illegally enter its territory or to those apprehended within two weeks after their illegal entry to the territory of a Member State.131 Due to the EP’s fierce opposition, the new Article, as such, did not make it into the final text of the Directive;132 however, its main elements have been largely integrated into the final version of Article 12(3), i. e. (i) no obligation to translate the core of decisions related to return, (ii) the use of standard forms for those decisions, and (iii) the provision of generalised information sheets in five languages, and explaining the main elements of the standard forms. It is worth noting here that the personal scope of application of the current Paragraph 3 is even larger (i. e. not having any geographic or time limitations) than the one which was foreseen for accelerated procedures.133 Moreover, the initial proposal included in draft Article 13a to determine in Annex I of the Directive a harmonised EU standard form, which would be similar to the standard form for refusal of entry at the border, provided in Annex V part B of the Schengen Borders Code Regulation (EC) No 562/2006, could not gain wide acceptance during the negotiation process, which is why it is now up to Member States to set out such forms in their respective national legislation.134

III. Form 1. General boundaries of the duty to state reasons Paragraph 1 defines the general boundaries of the duty to give reasons: return, removal 10 and entry-ban decisions, which must be issued in writing and also contain information about available legal remedies, have to provide reasons in fact and in law, which have led to the adoption of those decisions. The ECJ’s extensive case-law on Article 296 TFEU provides helpful guidance for defining the extent of the duty to state reasons. According to the ECJ, the obligation to state adequate reasons is an essential procedural 11 requirement that must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue.135 The person concerned must receive the notification, in principle, at the same time as 12 the decision adversely affecting him or her, and the absence of reasoning cannot be legitimised by the fact that he or she becomes aware of the reasons for the decision 127 See for instance Council doc. 13195/07 of 3 October 2007, p. 27, fn. 44 and Council doc. 14783/07 of 12 November 2007, p. 32, fn. 47. 128 Council doc. 13195/07 of 3 October 2007, p. 27, fn. 45. 129 See Council doc. 13658/07 of 15 October 2007, p. 23, fn. 38. 130 See more detailed in Lutz, The Negotiations on the Return Directive, p. 23, 58–59. 131 Ibid., p. 58; Council doc. 1447/07 of 29 October 2007, p. 33–34. Council doc. 15566/07 of 7 December 2007, p. 38–39. 132 See Lutz, The Negotiations on the Return Directive, p. 59. 133 Cf. ibid. 134 Ibid. 135 ECJ, Elf Aquitaine v Commission, C-521/09 P, EU:C:2011:620, para 146 and the case-law cited.

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during the procedure before the Courts.136 This would contradict to the aforementioned purposes of the obligation to give reasons. 13 The statement of reasons must be appropriate for the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to exercise its jurisdiction to review legality.137 The authorities have to set out in a concise, clear and relevant manner the principle issues of law and fact upon which the decisions is based so that the reasoning behind the adoption of the decisions can be understood.138 The statement of the reasons must be logical and contain no internal inconsistency that would prevent a proper understanding of the reasons underlying the measure.139 14 Providing general and stereotyped reasons which does not include any specific information on particular circumstances of the TCN concerned violates the duty to give reasons.140 Moreover, under settled case-law of the ECJ, the requirement to state reasons must be assessed by reference to the circumstances of the case. The main emphasis comes here on the content of the measure in question, the nature of the reasons given and the interest which the addressee of the measure may have in obtaining explanations.141 Therefore, it can be safely argued that considering that return, removal and entry-ban decisions significantly affect the lives of the third-country nationals concerned and that they might not be familiar with legal and administrative formalities surrounding their case, the duty to state reasons needs to be exercised with particular care by the administration, especially if the TCNs are not legally represented. In this regard, it is interesting to make parallel to Article 30(2) of the Free Movement Directive 2004/38/EC which obliges Member States to inform the persons concerned precisely and in full of the public policy, public security or public health grounds on which the decision taken in their case is based. Further reference should be made in this context to the relevant dictum of the ECJ in Council v Bamba, according to which where the person concerned is not afforded the opportunity to be heard before the adoption of an initial decision, compliance with the obligation to state reasons is all the more important.142 The reason for it is that in those cases the duty to state reasons constitutes the sole safeguard enabling the person concerned, at least after the adoption of that decision, to make effective use of the legal remedies available to him in order to challenge the lawfulness of that decision.143 15 Finally, it needs to be mentioned that decision-making authorities are not obliged to adopt a position on all the arguments relied on by the parties concerned, and it is sufficient if they set out the facts and the legal considerations which have decisive importance in the context of the decision.144 This is in particular the case in relation to

136 ECJ, Elf Aquitaine v Commission, C-521/09 P, EU:C:2011:620, para 149; ECJ, Michel v Parliament, C-195/80, ECLI:EU:C:1981:284, para 22; ECJ, Spain v Commission, C-351/98, EU:C:2002:530, para 84; ECJ, IPK-Mu¨nchen v Commission, C-199/01 P, EU:C:2004:249, para 66; ECJ, Dansk Rørindustri and Others v Commission, C-189/02 P, EU:C:2005:408, para 463. 137 ECJ, Ziegler v Commission, C-439/11 P, EU:C:2013:51,3 para 87. 138 Craig, in Peers et al. (eds), The EU Charter, Art. 41, RN 41.48 et seq. 139 ECJ, Elf Aquitaine v Commission, C-521/09 P, EU:C:2011:620, para 151. 140 Cf. Reneman, EU Asylum Procedures and the Right to an Effective Remedy, (Hart, 2014), p. 100 and Casini, T-132/03, para. 35. 141 ECJ, Commission v Sytraval and Brink’s France, C-367/95 P, EU:C:1998:154, para 63. 142 ECJ, Council v Bamba, C-417/11 P, ECLI:EU:C:2012:718, para 51. 143 Ibid. Cf. Reneman, EU Asylum Procedures and the Right to an Effective Remedy (Hart, 2014), p. 99. 144 GC, Kenzo Tsujimoto, T-393/12, ECLI:EU:T:2015:45, para 19 and the case-law cited. Cf. Craig, in Peers et al. (eds), The EU Charter, Art. 41, MN 41, 55.

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those matters raised in the proceedings, which are manifestly irrelevant or insignificant or plainly of secondary importance.145

2. Limits of non-disclosure of certain factual information As regards the non-disclosure of certain information on factual reasons for different 16 purposes listed in Paragraph 1(1), it needs to be stressed first of all that according to the principle of legality, if such limitations (or one of them) are not foreseen by national legislation, they cannot be invoked at all. Second, such a non-disclosure must be limited to that which is strictly necessary, while the TCN concerned must be informed, in any event, of the essence of the factual reasoning which has been limited in a manner which takes due account of the necessary confidentiality of the evidence.146 And third, the Member States are required to provide for effective judicial review both of the existence and validity of the reasons invoked by the national authority with regard to the reasons of non-disclosure while the competent national authorities have to prove that the national security, etc. will in fact be compromised by full disclosure to the person concerned of the grounds which constitute the basis of a given decision.147

3. Translation of decisions Paragraph 2 lays down an obligation of competent authorities to provide third- 17 country nationals concerned with a translation of the main elements of return, removal and entry-ban decisions as well as of the information relating to the available legal remedies. However, this obligation arises only if the third-country national requests such a translation. The latter can be provided either orally or in a written form. The language of the translation has to be the one which the TCN understands or may reasonably be presumed to understand. The translation obligation is directly linked with one of the aims of the duty to state 18 reasons, which is a clear understanding by the TCN concerned of the underlying reasons for a return related decision a view of deciding whether he or she wants to challenge that decision. Therefore, the existing problems in the implementation of this obligation in the Member States, which are mainly due to the lack of qualified translators/interpreters,148 are a threat to the right to an effective remedy.

4. Derogations applicable to a specific category of returnees Paragraph 3, as a remnant of the accelerated procedures from the draft directive 19 (see above MN 9), provides derogations from Paragraphs 1 and 2 in relation to a certain category of persons, namely the third-country nationals who have illegally entered the territory of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State. As the wording of Paragraph 1(1) suggests, this provision covers both the TCNs who have crossed illegally the EU external borders and the TCNs who have entered illegally from the territory of another Member State.149 It should be noted that considering the very nature of the phenomenon of irregular migration, the scope of application of Paragraph 3 is very broad, which might lead to its comprehensive rather than exceptional application. 145

GC, Kenzo Tsujimoto, T-393/12, ECLI:EU:T:2015:45, para 19 and the case-law cited. ECJ, ZZ, C-300/11, EU:C:2013:363, para 69. 147 ECJ, ZZ, C-300/11, EU:C:2013:363, para 61. 148 Matrix, Evaluation on the application of the Return Directive, p. 118–120. 149 In the latter case, Article 6(2) and (3) might apply. See Schieffer, in Hailbronner (ed), EU Immigration and Asylum Law, p. 1536. 146

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Besides, the phrase ‘have not (…) obtained’ implies that the mere application for an authorisation or a right to stay is not sufficient. 20 Paragraph 3(1) gives the discretion to the Member States not to provide the mentioned category of third-country nationals with a translation of the decisions related to return and of the information on available legal remedies. However, this is only an optional clause and the Member States can of course decide to do otherwise. The situation is different in case of Paragraph 3(2), which does not leave any space for manoeuvre to the Member States, obliging them to hand out to the persons falling under the scope of Paragraph 3 a standard form instead of a normal decision. However, since this provision has a restrictive character, Member States can invoke the more favourable provisions clause from Article 4(2) in order to provide the persons concerned with normal decisions and not with a standard form. It should also be stressed that as it refers back to the national legislation in which such a standard form needs to be set out, without such legislation, the Member States cannot rely on Paragraph 3(2). Therefore, the alleged wide-spread practice in Member States to use such forms without corresponding national legal provisions150 may violate the Directive. It is worth noting here that the very possibility (not to mention the obligation) of using a standard form raises serious questions of its compatibility with the duty to give reasons and the abovementioned aims pursued by such a duty.151 21 Paragraph 3(3) is directly linked with Paragraph 3(2) by setting the obligation of the Member States to make available generalised information sheets which would explain the main elements of the standard forms. These information sheets have to be provided in at least five languages which are most frequently used or understood by irregular migrants entering the Member State concerned. Due to the lack of data on irregular migration, it is questionable how the Member States should define which nationalities/ languages are among the top five.

Article 13 Remedies 1. The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in Article 12(1), before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence. 2. The authority or body mentioned in paragraph 1 shall have the power to review decisions related to return, as referred to in Article 12(1), including the possibility of temporarily suspending their enforcement, unless a temporary suspension is already applicable under national legislation. 3. The third-country national concerned shall have the possibility to obtain legal advice, representation and, where necessary, linguistic assistance. 4. Member States shall ensure that the necessary legal assistance and/or representation is granted on request free of charge in accordance with relevant national legislation or rules regarding legal aid, and may provide that such free legal assistance and/or representation is subject to conditions as set out in Article 15(3) to (6) of Directive 2005/85/EC. 150 151

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Content I. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The right to a fair hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Effectiveness of a remedy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Need for broader interpretation of Paragraph 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 2. General and specific powers of reviewing authorities . . . . . . . . . . . . . . . . . . . . a) The extent of the review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Suspensive effect of a remedy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. General obligations concerning legal advice/representation and linguistic assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Free legal aid. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 4 7 10 10 13 14 16 19 21

I. General remarks Article 13 lays down specific modalities for the exercise of the right to an effective 1 remedy. Due to the fact that this right is recognised as a general principles of the EU law152 mirrored in Article 47 CFR,153 Article 13 of the Directive has to be interpreted with due regard to the mentioned provision of the Charter and the related case law of the CJEU. The reference should be made in this regard to the ECJ’s recent judgment in Abdida, in which the Court stated with regard to Article 13 that ‘the characteristics of such a remedy must be determined in a manner that is consistent with Article 47 of the Charter’.154

1. The right to a fair hearing As Article 13 and especially its first two paragraphs have been greatly inspired by 2 Guideline No. 5 from the CoE Twenty Guidelines on Forced Return, which on its part is based on Article 13 ECHR, it needs to be recalled here that Article 47 CFR goes far beyond the protection offered by Article 13 ECHR. Unlike the latter, Article 47 CFR guarantees the right to an effective remedy before a court or tribunal and in addition, it also grants everyone the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal. Since the mentioned right is not confined to disputes relating to civil law rights and obligations, as it is the case under Article 6(1) ECHR,155 it must be guaranteed in return proceedings as well, even if Article 13 of the Directive does not explicitly mention it. The right to a fair hearing includes especially the right to adversarial proceedings 3 and equality of arms.156 Under the adversarial principle, the returnee must have the right to examine, and comment on, all the documents or observations submitted to a court by a competent administrative authority for the purpose of influencing the court’s decision.157 It also implies a right for the returnee to be apprised of pleas in law raised by courts of their own motion, on which they intend to base their decisions, and to discuss them.158 The ECJ considers in this regard that the fundamental right to an effective legal remedy under Article 47 CFR would be infringed if a judicial decision 152

Also called the principle of effective judicial protection. ECJ, Samba Diouf, C-69/10, EU:C:2011:524, para 49. 154 ECJ, Abdida, C-562/13, EU:C:2014:2453, para 45. 155 Explanatory Note on Article 47. 156 See Sayers, in Peers et al. (eds), The EU Charter, Art. 47, p. 1260. 157 ECJ, ZZ, C-300/11, EU:C:2013:363, para 55. 158 ECJ, Commission v Ireland and Others, C-89/08 P, EU:C:2009:742, para 55. 153

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were founded on facts and documents which the parties themselves, or one of them, have not had an opportunity to examine and on which they have therefore been unable to state their views.159 As regards the principle of the equality of arms, according to the ECJ it is a corollary of the very concept of a fair hearing and implies that each party must be afforded a reasonable opportunity to present his case, including his evidence, under conditions that do not place him at a substantial disadvantage vis-a`-vis his opponent.160 As the aim of this principle is to ensure a balance between the parties to proceedings,161 it risks to be undermined if a returnee has serious practical obstacles in terms of presenting his or her case.162

2. Effectiveness of a remedy Weather a remedy available to returnees is effective will depend on its compliance with a multitude of further criteria developed in this regard by the ECtHR and the ECJ. While some of them will be elaborated on when commenting below on particular elements of Article 13, those criteria which are not explicitly mentioned in this Article deserve to be mentioned here. 5 Even if the effectiveness of a remedy does not depend on the certainty of a favourable outcome for the applicant,163 in order to be effective, the remedy must be available in practice as well as in law. This is the case in particular when its exercise is not unjustifiably hindered by the acts or omissions of the authorities of the respondent State.164 The role of procedural rules set out in this regard can be crucial as they might render practically impossible or excessively difficult the exercise of the right to an effective remedy and consequently, the rights flawing from the Directive, thus violating the principle of effectiveness which is one of the core principles recognised in the EU law.165 The level of procedural protection depends on the rights in question (e. g. higher protection in case of non-refoulement) as well as on general and personal circumstances of the party concerned (higher protection of the parties in a weak legal position or of vulnerable persons).166 6 The speediness of the remedial action is another component of the effectiveness as the adequate nature of the remedy can be undermined by its excessive duration.167 At the same time, the time-limits for exercising the remedy must not be unreasonably short.168 Moreover, the haste in the execution of removal can have the effect of rendering the available remedies ineffective in practice and therefore inaccessible.169 4

II. Drafting history 7

Draft Article 12 from the Commission’s proposal on ‘judicial remedies’ consisted of 3 paragraphs.170 The first one provided for the obligation of the Member States to ensure an 159

ECJ, ZZ, C-300/11, EU:C:2013:363, para 56. ECJ, Otis and Others, C-199/11, EU:C:2012:684, para 71. 161 Ibid., para 72. 162 Cf. Sayers, in Peers et al. (eds), The EU Charter, Art. 47, p. 1263. 163 ECtHR, Judgment of 13 December 2012, No. 22689/07, Souza Ribeiro v France, para 79. 164 ECtHR, Judgment of 13 December 2012, No. 22689/07, Souza Ribeiro v France, para 80. 165 Cf. Hofmann, in Peers et al. (eds), The EU Charter, Art. 47, p. 1216; Reneman, EU Asylum Procedures and the Right to an Effective Remedy (Hart, 2014), p. 88. 166 Reneman, EU Asylum Procedures and the Right to an Effective Remedy (Hart, 2014), p. 105 et seq. 167 ECtHR, Judgment of 13 December 2012, No. 22689/07, Souza Ribeiro v France, para 81. 168 Council of Europe, Twenty Guidelines on Forced Return (September 2005), p. 21. 169 ECtHR, Judgment of 13 December 2012, No. 22689/07, Souza Ribeiro v France, para 95. 170 Commission Proposal, COM(2005) 391, p. 18. 160

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effective judicial remedy before a court or tribunal. The second paragraph foresaw that a judicial remedy had to have suspensive effect on the enforcement of a return decision either automatically or as a direct result of an application of a returnee for such a suspension. The third paragraph corresponded to paragraph 3 of current Article 13, imposing in addition free legal aid for those returnees who lacked sufficient resources under the condition that such aid was necessary to ensure effective access to justice. Despite the fact that the draft Article 12, especially its paragraphs 1 and 3, was 8 inspired by Article 47 CFR and Article II-107 of the EU Constitution,171 already before the trilogue negotiations, the Council has substantially watered down the guarantees provided in it. Judicial remedy before a court or tribunal has been replaced by a remedy before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence.172 Paragraph 2 was reshaped in its current form thus removing the automatic or application-based suspensive effect of a remedy and paragraph 4, stating that legal aid had to be made available in accordance with national legislation, has been added.173 These changes have largely survived the trilogue negotiations. The exception was paragraph 4 on legal aid, which according to final compromise foresaw that returnees would be given in accordance with the relevant national rules free legal aid in case they did not have sufficient resource.174 However, this compromise version did not make into the final draft of the Directive as due to the pressure from certain Member States and a subsequent ‘last minute’ change of the text submitted to the COREPER concerning the replacement of the ‘shall-clause’ by a ‘may-clause’, negotiations have reopened to overcome this ‘last hurdle’ for the adoption of the Directive.175 The current version of Article 13(4) was then mainly the result of (i) the resistance of the European Parliament to the proposed change, (ii) the introduction in Article 20(1) of the Directive of the possibility to postpone the transposition of that provision with one additional year and (iii) the commitment made by the Commission to assist Member States in its implementation through the EU Return Fund.176 Finally, it should also be mentioned that the draft Article 13a(4) (see above Article 12, 9 MN 9) which intended to opt-out the application of the provision on legal remedies in relation to third-country nationals intercepted after their illegal entry did not find its way into the final version of the Directive.177

III. Remedies 1. Need for broader interpretation of Paragraph 1 The textual interpretation of Paragraph 1, establishing the general obligation of the 10 Member States to provide third-country nationals with an effective remedy, suggests that it entails two limitations. First of all, it mentions an effective remedy only in relation to decisions related to return, as referred to in Article 12(1). As the latter mentions only return decisions, entry-ban decisions and decisions on removal, this might lead to the conclusion that all other decisions covered by the scope of the Directive do not fall under the mentioned provision. While this is true for those 171

Lutz, The Negotiations on the Return Directive, p. 60–62. See Trialogue Table in Lutz, The Negotiations on the Return Directive, p. 203. 173 Ibid. 174 Cf. Ibid., p. 343. 175 See in more detail on this issue, Lutz, The Negotiations on the Return Directive, p. 24–25 and 62–63. 176 Ibid. See also Schieffer, in Hailbronner (ed.), EU Immigration and Asylum Law, p. 1538. 177 See Lutz, The Negotiations on the Return Directive, p. 58–59. 172

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decisions which raise the questions of lawfulness of detention – since Article 15 as lex specialis178 foresees particular lawfulness review proceedings – all other decisions, for instance, a competent authority’s refusal to extend the period for voluntary departure under Article 7(2), to postpone removal under Article 9179, to withdraw or suspend an entry ban under Article 11(3)180 or even not to grant a free legal aid under Article 13(4), are covered by the protection offered under Article 13. If this was not the case it would not only violate Article 19(1) TEU, according to which Member States ‘shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’, but also the principle of sincere cooperation which includes the obligation of judicial enforcement of EU law before national courts,181 not to mention Article 47 of the Charter. Even if one could assume that by such a limitation the Member States intended to keep their procedural autonomy regarding the application of the right to an effective remedy to the mentioned cases, Article 13 would still indirectly apply based on the principles of equivalence and effectiveness.182 11 Another limitation to the right to an effective remedy under Article 47 CFR, which can be inferred from the textual interpretation of Paragraph 1, is that the latter does not exclusively grant the right to judicial remedy, but makes it also possible that an administrative authority which is not required to be composed of members who are impartial and who enjoy safeguards of independence acts as an appellate or review body.183 It is to be stressed that the use of this option would be clearly in violation of the EU law. As mentioned above, Article 47 CFR guarantees the right to an effective remedy before a court or tribunal. 12 It should be mentioned here that the ECJ interprets the status of a court or tribunal as a self-standing concept of the EU law.184 For a court or tribunal to qualify as such in the sense of the EU law, (i) it has to be a permanent body established by law, (ii) it has to have compulsory jurisdiction, (iii) the procedure before it has to be of adversarial nature (see above MN 3), i. e. inter partes, (iv) it has to apply rules of law, and (v) it has to be independent and impartial.185 As a result, the last instance review of return related decisions by an administrative authority would be in clear violation of the EU law.186 Moreover, in those Member States where the national legislation provides the possibility of multi-level review with the first review conducted by an administrative authority,187 the latter cannot qualify as offering an effective remedy in the sense of Article 13.

2. General and specific powers of reviewing authorities 13

Paragraph 2 defines one general and one specific power of an authority or a body, mentioned in Paragraph 1. It first imposes that they must have the power to review 178

Cf. Schieffer, in Hailbronner (ed), EU Immigration and Asylum Law, p. 1538. Cf. ibid. 180 See Draft Commission Return Handbook, p. 56 181 Cf. Hofmann, in Peers et al. (eds), The EU Charter, Art. 47, p. 1212–1213. 182 See on the application of those principles above Article 12, MN 7. 183 The German version of the Directive (“Verwaltungsbeho ¨ rde oder einem zusta¨ndigen Gremium, dessen Mitglieder unparteiisch sind und deren Unabha¨ngigkeit garantiert wird”) supports the best this interpretation. 184 Pech, in Peers et al. (eds), The EU Charter, Art. 47, p. 1251. 185 See Hofmann, in Peers et al. (eds), The EU Charter, Art. 47, p. 1214 and Pech, in Peers et al. (eds), The EU Charter, Art. 47, p. 1253 et seq. 186 See on the existing review systems in the Member States: Matrix, Evaluation on the application of the Return Directive, 2013, p. 123. 187 Ibid. 179

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decisions related to return and subsequently, it requires that such authorities or bodies have the possibility of temporary suspending the enforcement of those decisions, unless a temporary suspension is already applicable under national legislation. a) The extent of the review. As regards the general powers of a reviewing body under 14 Article 13, which is also linked to the question of the intensity of the review, here again both the ECJ188 and the ECtHR189 require that courts and tribunals must be able to review not only the questions of law, but also the facts. The ECtHR is more specific in that regard and demands in the context of Article 6(1) ECHR, which as mentioned above has been integrated in Article 47 CFR (see above MN 2), that a judicial body has full jurisdiction. According to the Strasbourg Court, the characteristics of a judicial body with full jurisdiction include, in addition to the possibility to examine all questions of fact and law relevant to the dispute before it, the power to quash in all respects, on questions of fact and law, the decision of the body below.190 It needs to be said here that the mentioned definition of ‘full jurisdiction’ does not 15 correspond to how that term is framed in francophone Member States where the ‘full jurisdiction’ means also the power of a court to either modify an administrative decision or to replace it with a new one. In this regard, the reference should be made to Recital 15 of the Directive, which states that Member States have wide discretion in terms of deciding whether or not the review of decisions related to the return implies the power for the reviewing body to substitute its own decision related to the return for the earlier decision. b) Suspensive effect of a remedy. As regards the suspensive effect of a remedy, 16 Paragraph 2 speaks only of the necessity of the reviewing body having the power to stay the enforcement of decisions related to the return and leaves entirely aside the question of in which cases such a suspensive effect has to be ordered. The provision leaves the impression that the reviewing bodies have a full discretion of using that option. However, according to the Strasbourg case-law on Article 13 ECHR, there are cases where such discretion does not exist. The ECtHR holds in this respect that effectiveness of a remedy requires that when the rights under Articles 2 and 3 ECHR are at stake in expulsion proceedings, the person concerned must have access to a remedy with automatic suspensive effect.191 This line has been recently followed by the ECJ in Abdida. With reference to the relevant Strasbourg case-law, the Court of Justice declared that based on Articles 5 and 13 of the Directive, taken in conjunction with Articles 19(2) and 47 CFR, a remedy must have an automatic suspensive effect in cases where a TCN suffers from a serious illness and the enforcement of the return decision may expose him to a serious risk of grave and irreversible deterioration in his state of health. Where expulsions are challenged on the basis of the protection of private and family 17 life under Article 8 ECHR, the ECtHR does not require an automatic suspensive effect of a remedy. On a more general note, one may wonder whether the right to a fair hearing cannot under certain circumstances (e. g. when a returnee is not legally represented) justify that a remedy has a suspensive effect on the removal, especially when TCNs are returned to those countries where they cannot be reached.192 188

ECJ, Wilson, C-506/04, EU:C:2006:587, paras 61–62. ECtHR, Judgment of 13 February 2003, No. 49636/99, Chevrol v France, para 77. 190 ECtHR, Judgment of 7 June 2012, No. 4837/06, Segame SA v France, para 55 and the case law cited. 191 ECtHR, Judgment of 13 December 2012, No. 22689/07, Souza Ribeiro v France, para 82; ECtHR, Judgment of 26 April 2007, No. 25389/05, Gebremedhin [Gaberamadhien] v. France, para 66; ECtHR, Judgment of 23 February 2012, No. 27765/09, Hirsi Jamaa and Others v. Italy, para 200. 192 Cf. above MN 2. 189

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Finally, it needs to be referred back to Article 9(1)(b) of the Directive, which foresees the obligation of the Member States to postpone removal for as long as a suspensive effect is granted in accordance with Article 13(2).

3. General obligations concerning legal advice/representation and linguistic assistance Paragraph 3 and Paragraph 4 are closely interrelated as the former sets out the obligation of the Member States to make sure that the TCNs have the possibility to obtain legal advice, representation and, when necessary, linguistic assistance while the latter defines the conditions under which the TCN shall receive free legal aid. The only point where there is no link between these two paragraphs is that Paragraph 4 does not mention free linguistic assistance. However, since paragraph 3 refers to it in general terms, linking it with the necessity of such assistance, and as linguistic assistant can under certain circumstances be a crucial factor not only for the access to justice (e. g. when communicating with a lawyer to frame an appeal), but also for using the procedural rights flowing from the right to an effective remedy, it can be safely argued that there should be no barriers (including financial) in the access to the linguistic assistance in a particular case. Otherwise, the effet utile of this provision would be under question.193 20 As regards the obligation of the Member States under Paragraph 3 to ensure that the TCNs have the possibility to obtain legal advice and representation, this obligation corresponds to Article 47(2) CFR according to which ‘everyone shall have the possibility of being advised, defended and represented’. To ensure the effet utile of this provision, it is important that the advice, defence and representation provided are unbiased and guided first and foremost by the defence of the interests of the TCN concerned. Therefore, it is questionable whether, for instance, legal advice provided by an administrative authority can generally fulfil these criteria.194 19

4. Free legal aid Paragraph 4 must be interpreted in the light of Article 47(3) CFR (‘Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice’). When doing so, particular attention has to be paid not only to the pertinent ECJ case-law, but also to the Strasbourg jurisprudence which inspired the mentioned provision of the Charter. 22 For the ECtHR, failure to provide the legal aid may breach the right to access to a court (which on its part constitutes an element which is inherent in the right to a fair trial195) where such assistance is indispensable for effective access to court, either because legal representation is rendered compulsory or by reason of the complexity of the procedure or the type of case.196 Factors in determining whether the person concerned would have been able to present his or her case properly and satisfactorily without the assistance of a lawyer include the complexity of the procedure, the necessity to address complicated points of law or to establish facts, and the personal circumstances such as social or professional background.197 The question of fairness and adequacy of the procedure can 21

193 On the effet utile of this provision cf. Commission Return Handbook, p. 72 also referring in this ˇ onka v. Belgium. regard to ECtHR, Judgment of 5 February 2002, No. 51564/99, C 194 Cf. Draft Commission Return Handbook, p. 55. 195 ECtHR, Judgment of 21 February 1975, No. 4451/70, Golder v. the United Kingdom, para 36 196 ECtHR, Judgment of 9 October 1979, No. 6289/73, Airey v. Ireland, para 26. 197 ECtHR, Judgment of 16 July 2002, No. 56547/00, P., C. and S. v. United Kingdom, para 89; ECtHR, Judgment of 7 May 2002, No. 46311/99, McVicar v. United Kingdom, para 49 et seq.

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arise where the person concerned not represented by a lawyer cannot participate effectively in proceedings, for instance, by not being able to put forward the matters in support of his or her claim, especially in cases where the stakes are high for him.198 Relying on the pertinent Strasbourg case-law, the European Court of Justice refers 23 with regard to the necessity of the provision of (free) legal aid to the following criteria: (i) the subject-matter of the litigation; (ii) whether the applicant has a reasonable prospect of success; (iii) the importance of what is at stake for the applicant in the proceedings; (iv) the complexity of the relevant law and procedure; (v) the applicant’s capacity to represent himself effectively; and (vi) the amount of the costs of the proceedings in respect of which advance payment must be made and whether or not those costs might represent an insurmountable obstacle to access to the courts.199 As regards the reference to Article 15(3) to (6) of the former Asylum Procedures 24 Directive 2005/85/EC in Paragraph 4, that reference is not static but dynamic under Article 53(2) of the Asylum Procedures Directive 2013/32/EU. Therefore, it needs to be read as a reference to Articles 20 and 21 of the Asylum Procedures Directive 2013/32/ EU.200 In accordance with the latter, Member States have the discretion (but not the obligation) to foresee that free legal assistance and representation is only granted: where the appeal is considered by a court or tribunal or other competent authority to have tangible prospect of success; to those who lack sufficient resources; through the services provided by legal advisers or other counsellors specifically designated by national law to assist and represent applicants; in first instance appeal procedures and not for further appeals or reviews.201 Member States may also: 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 this right; 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 in matters pertaining to legal assistance; 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 applicant.202 Any other condition such as being subject to an entry-ban is not covered either by the Return Directive or the Asylum Procedures Directive 2013/32/EU and their imposition would violate the former.203 The most problematic conditionality criterion for the provision of the free legal 25 assistance and/or representation seems to be the so-called merit test,204 i. e. its conditionality to ‘tangible prospect of success’. The reasons for this are at least twofold. First, the fact that under certain circumstances it can be also the administration and not necessarily a court or tribunal which has a decision-making power in this regard can lead to an odd situation where the administration has to indirectly admit the flaws in its decision, which is hard to imagine. Second, the lack of knowledge on the part of a returnee with regard to substantive and procedural legal issues can very often lead to the situations where an appeal is framed in such a way that it has no prospect of even passing the admissibility stage. Therefore, the mentioned criterion needs to be used carefully, by taking into account individual circumstances of a returnee in each particular case. 198

Cf. ECtHR, Judgment of 16 July 2002, No. 56547/00, P., C. and S. v. United Kingdom, para 91. ECJ, DEB, C-279/09, EU:C:2010:811. 200 Cf. Commission Return Handbook, p. 73. 201 Ibid. 202 Ibid. 203 According to Matrix, Evaluation on the application of the Return Directive, certain Member States do not provide the free legal aid to those returnees who are subject to an entry-ban. 204 See on the deficiencies in the application of this test in practice: Matrix, Evaluation on the application of the Return Directive, p. 128. 199

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Part C VII Art. 14

Immigration

Article 14 Safeguards pending return 1. Member States shall, with the exception of the situation covered in Articles 16 and 17, ensure that the following principles are taken into account as far as possible in relation to third-country nationals during the period for voluntary departure granted in accordance with Article 7 and during periods for which removal has been postponed in accordance with Article 9: (a) family unity with family members present in their territory is maintained; (b) emergency health care and essential treatment of illness are provided; (c) minors are granted access to the basic education system subject to the length of their stay; (d) special needs of vulnerable persons are taken into account. 2. Member States shall provide the persons referred to in para 1 with a written confirmation in accordance with national legislation that the period for voluntary departure has been extended in accordance with Article 7(2) or that the return decision will temporarily not be enforced. Content I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Safeguards pending return . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Basic minimum rights pending postponed return . . . . . . . . . . . . . . . . . . . . . . . 2. Written confirmation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Situations of protracted irregularity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 3 11 12

I. General remarks 1

Article 14 covers the situation of third-country nationals who are staying illegally and who are subject of return procedures but who cannot yet be removed. Its intended effect is described in some detail in recital 12.

II. Drafting history 2

The Directive leaves Member States the choice of either issuing return decisions to illegally staying third-country nationals or to grant permits (regularise) these persons. This approach is aimed at reducing grey areas (see above Article 6 MN 3). It may, however, also increase in practice the absolute number of cases in which Member States issue return decisions which cannot be enforced due to practical or legal obstacles for removal (e. g. delays in obtaining the necessary papers from third countries and nonrefoulement cases). In order to avoid a legal vacuum for these persons, the Commission proposal (Article 13) had provided for a minimum level of conditions of stay for those illegally staying third-country nationals for whom the enforcement of the return decision has been postponed or who cannot be removed by referring to the substance of a set of conditions already laid down in Articles 7 to 10, Article 15 and Articles 17 to 20 of the former Asylum Reception Directive 2003/9/EC, covering – in essence – family unity, health care, schooling and education for minors as well as respect for special needs of vulnerable persons. Other important rights under Directive 2003/9/EC, such as 728

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access to employment and material reception conditions were not referred to. During the negotiations, Member States expressed concern that references to the Reception Conditions Directive might be perceived as ‘upgrading’ the situation of irregular migrants and thus send a wrong policy message. Therefore a self-standing list of ‘principles to be taken into account’ was established.205

III. Safeguards pending return 1. Basic minimum rights pending postponed return The scope of situations covered by Article 14(1) is broad: It covers the period for voluntary departure as well as any period for which removal has been formally or defacto postponed in accordance with Article 9 (appeal with suspensive effect; possible violation of non-refoulement principle; health reasons, technical reasons, failure of removal efforts due to lack of identification and others). Periods spent in detention are expressly excluded – since the related safeguards are regulated elsewhere (in Articles 15–17). Even though Article 14(1) is not formulated as a list of rights but as a list of ‘principles to be taken into account’, a systematic interpretation of the text of the directive which considers compliance with fundamental rights as a cardinal principle for the interpretation of its provisions (see above Article 1 MN 19) allows interpreting Article 14(1) as a minimum list of basic rights. This was confirmed by the ECJ in Abdida where the ECJ expressly referred to ‘the requirement to provide emergency healthcare and essential treatment of illness under Article 14(1)(b) of the Directive’.206 The principle of maintaining family unity in Article 5(a) is a concretization of the general rule, set out in Article 5(b), to protect family life when implementing the Directive (see also recital 22). The provision of emergency health care is a basic minimum right and access to it must not be made dependent on the payment of fees. In its judgement in case Abdida207 the ECJ found that Member States are obliged to also cover – as concomitant requirement to the requirement to provide emergency health care – other basic needs, in order to ensure that emergency health care and essential treatment of illness are in fact made available during the period in which that Member State is required to postpone removal. Access to education: The limitation ‘subject to the length of their stay’ should be interpreted restrictively. In cases of doubt about the likely length of stay before return, access to education should rather be granted than not be granted. A national practice where access to the education system is normally only established if the length of the stay is more than fourteen days may be considered as acceptable. As regards practical problems, such as cases in which the minor does not have a document proving the education already obtained in other countries or cases in which the minor does not speak any language in which education can be provided in the Member State, appropriate answers need to be found at national level, taking into account the spirit of the Directive and relevant international law instruments. Inspiration may also be drawn from the asylum acquis in particular Article 14 of the Asylum Reception Conditions Directive 2013/33.208 205

Lutz, The Negotiations on the Return Directive, p. 64. ECJ, Abdida, C-562/13, EU:C:2014:2453, para 60. 207 ECJ, Abdida, C-562/13, EU:C:2014:2453, paras 59–60. 208 Commission Return Handbook, p. 75. 206

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The term ‘vulnerable person’ is defined in Article 3(9). The obligation to pay specific attention to the situation of vulnerable persons throughout all steps of the procedure is an important principle of the Directive (see above Article 3 MN 25). 9 In its judgement in case Abdida209, the ECJ found that Member States are obliged to also cover other basic needs, in order to ensure that emergency health care and essential treatment of illness are in fact made available during the period in which that Member State is required to postpone removal (see above MN 6). The logic upon which the ECJ relied to establish this obligation was that the requirement to provide emergency health care and essential treatment of illness under Article 14(1)(b) of Directive 2008/115 may be rendered meaningless if there was not also a concomitant requirement to make provision for the basic needs of the third country national concerned. Based on the logic developed by the ECJ, it can be considered that enjoyment of the other rights enumerated in Article 14(1) (family unity; access to education; taking into account needs of vulnerable persons) should also give rise to a concomitant requirement to make provision for the basic needs of the third country national concerned. 10 Even though there is no general legal obligation under Union law to make provision for the basic needs of all third country nationals pending return, the Commission encourages Member States in its Return Handbook210 to do so under national law, in order to assure humane and dignified conditions of life for returnees 8

2. Written confirmation 11

Para 2 requires Member States to issue a written confirmation of the extension of the period for voluntary departure or of the temporary non-execution of a return decision. Member States enjoy wide discretion in this regard. The confirmation can either be a separate paper issued by the national authorities or part of a formal decision related to return. It is important that it allows the returnee to clearly demonstrate – in case of a police control – that he/she is already subject of a pending return decision and that he/ she benefits from a period for voluntary departure or postponement of removal. The requirement to issue a written confirmation arises both in situations of formal postponement of return and in cases of ‘de facto’ postponement (see above Article 9 MN 5). The confirmation should specify the length of the period for voluntary departure or the postponement. Recital 12 specifies: ‘In order to be able to demonstrate their specific situation in the event of administrative controls or checks, such persons should be provided with written confirmation of their situation. Member States should enjoy wide discretion concerning the form and format of the written confirmation and should also be able to include it in decisions related to return adopted under this Directive.’

3. Situations of protracted irregularity 12

The fact that return or removal cannot be carried out for practical reasons for a certain period does not imply that the Directive stops applying. As long as an illegally staying third country national is present in a Member State, he/she remains covered by the scope and the safeguards of the Directive including its Article 14 even though the maximum time period for detention may have been reached (see above Article 2 MN 16). This may imply that Article 14 covers situations of long term protracted irregularity extending in certain cases to several years.211 In Achughbabian212, the ECJ 209

ECJ, Abdida, C-562/13, EU:C:2014. Commission Return Handbook, p. 75. 211 Peers et al (eds), EU Immigration and Asylum Law, p. 505. 212 ECJ, Achughbabian, C-329/11, EU:C:2011:807, para 48. 210

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expressly referred to the possibility of Member States to impose criminal law sanctions under national law on ‘third-country nationals to whom the return procedure established by that directive has been applied and who are illegally staying in the territory of a Member State without there being any justified ground for non-return’. This reference only relates to the possibility of Member States to impose criminal law sanctions and does not imply that the Return Directive and its safeguards (notably Article 5 (respect of principle of non-refoulement), Article 9 (postponement of removal), Article 14 and Article 15(6) (right not to be detained for return related purposes for more than 6/18 months) would not be applicable any more after unsuccessful removal efforts. Member States are not obliged to grant a permit to non-removable returnees once it 13 becomes clear that there is no more reasonable prospect of removal, but Member States are free to do so at any moment. This was expressly clarified by the ECJ in its judgement in Mahdi.213 This situation leaves a gap in the EUs migration acquis.214 In its Return Handbook,215 14 the Commission recommends to Member States to take into account certain individual (case related) as well as horizontal (policy related) assessment criteria when considering the regularisation of non-removable returnees: the cooperative/non-cooperative attitude of the returnee; the length of factual stay of the returnee in the Member State; integration efforts made by the returnee; personal conduct of the returnee; family links; humanitarian considerations; the likelihood of return in the foreseeable future; need to avoid rewarding irregularity; impact of regularisation measures on migration pattern of prospective (irregular) migrants; likelihood of secondary movements within Schengen area. It remains to be seen whether these recommendations will be the starting point for further harmonisation in this field.

CHAPTER IV DETENTION FOR THE PURPOSE OF REMOVAL Article 15 Detention 1. Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence. 2. Detention shall be ordered by administrative or judicial authorities. Detention shall be ordered in writing with reasons being given in fact and in law. When detention has been ordered by administrative authorities, Member States shall: 213

ECJ, Mahdi, C-146/14 PPU, EU:C:2014:1320, paras 87–88. Acosta, ‘The Returns Directive: Possible Limits and Interpretation’, in: Karin Zwaan (ed.), The Returns Directive: Central Themes, Problem Issues, and Implementation in Selected Member States (Wolf Legal Publishers, 2011), p. 16–23. 215 Commission Return Handbook, p. 77. 214

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(a) either provide for a speedy judicial review of the lawfulness of detention to be decided on as speedily as possible from the beginning of detention; (b) or grant the third-country national concerned the right to take proceedings by means of which the lawfulness of detention shall be subject to a speedy judicial review to be decided on as speedily as possible after the launch of the relevant proceedings. In such a case Member States shall immediately inform the thirdcountry national concerned about the possibility of taking such proceedings. The third-country national concerned shall be released immediately if the detention is not lawful. 3. In every case, detention shall be reviewed at reasonable intervals of time either on application by the third-country national concerned or ex officio. In the case of prolonged detention periods, reviews shall be subject to the supervision of a judicial authority. 4. When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately. 5. Detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a limited period of detention, which may not exceed six months. 6. Member States may not extend the period referred to in paragraph 5 except for a limited period not exceeding a further twelve months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to: (a) a lack of cooperation by the third-country national concerned, or (b) delays in obtaining the necessary documentation from third countries. Content I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Necessity grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Alternatives to detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. The role of judiciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Maximum length of detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Institutional and procedural framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Scope and intensity of judicial review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Speediness of the review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Specific procedural safeguards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) Periodic reviews. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Purposes of detention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Necessity of initial detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Risk of absconding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Avoiding or hampering the preparation of return or the removal process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Alternatives to detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. The proportionality of the length of detention . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Due Diligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Removal arrangements in progress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Impact of lodging an asylum application on the length of detention 6. Reasonable prospect of removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Defining factors of a reasonable prospect of removal. . . . . . . . . . . . . . . .

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b) Time-frame for the prognosis of a reasonable prospect of removal 56 c) The Intensity of the assessment of a reasonable prospect of removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 7. Maximum time-limits of detention and re-detention . . . . . . . . . . . . . . . . . . . . 59

I. General remarks Article 15, which provides specific requirements for the lawfulness of detention and 1 its judicial review, has to be interpreted in the light of the Strasbourg case-law concerning Article 5(1)(f) ECHR devoted to immigration detention and Article 5(4) ECHR providing for the right to a legal remedy against any deprivation of liberty. The obligation to interpret Article 15 of the Directive with due regard to the mentioned provisions derives in the first place from Article 1 of the Directive, according to which the latter sets out common standards and procedures to be applied in Member States for returning illegally staying third-country nationals, in accordance with fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations.216 Similarly, Recital 24 states that this Directive respects the fundamental rights and observes the principles recognised in particular by the CFR. It should be mentioned here that the right to liberty is recognized in its Article 6 CFR and the link between this right and its corresponding provision from the ECHR is made by Article 52(3) CFR, declaring that in so far as this Charter contains rights which correspond to rights guaranteed by ECHR, the meaning and scope of those rights shall be the same as those laid down by the said Convention. According to well-established ECtHR case-law to Article 5(1)(f) ECHR, any depriva- 2 tion of liberty must be ‘lawful’ whereas three main elements define the notion of lawfulness in the context of detention. First, it is the formal compliance with substantive and procedural pre-conditions of detention.217 The second element is the legal certainty/ ’the quality of law’, meaning the national laws have to be sufficiently accessible, precise and foreseeable in their application.218 And third is the non-arbitrariness of detention. According to the Strasbourg case-law on Article 5(1) ECHR, compliance with national law, i. e. with substantive and procedural conditions of detention provided in national legislation, is not sufficient for qualifying detention lawful, and Article 5(1) requires in addition that any deprivation of liberty be in keeping with the purpose of protecting the individual from arbitrariness.219 According to the ECtHR, detention is arbitrary when: it is not closely connected with the purpose of detention; the place and conditions of detention are inappropriate; the length of the detention exceeds that reasonably required for the purpose pursued, i. e. when competent authorities do not pursue the matter with due diligence;220 and finally, when despite complying with the letter of national law, there has been an element of bad faith on the part of the authorities.221 Further insight into the definition of arbitrariness in the context of detention is provided by the case-law of the UN Human Rights Committee (HRC) regarding Article 9 ICCPR,222 which unlike Article 5(1) ECHR explicitly mentions the prohibition 216

Emphasis added. Ibid., with reference to ECtHR, Judgment of 10 June 1996, No. 19380/92, Benham v. the United Kingdom, para 40. 218 ECtHR, Judgment of 23 July 2013, No. 41872/10, M.A. v. Cyprus, para 198. 219 ECtHR, Judgment of 11 July 2006, No. 13229/03, Saadi v. the United Kingdom, para 67. 220 Ibid., para 74. 221 Ibid., para 67. 222 With regard to the relevance of the ICCPR for the ECJ’s case-law, reference should be made to the following statement of the Court in Chakroun (ECJ, C-578/08, EU:C:2010:117, para 37): ‘The Court has 217

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of arbitrary detention, thus introducing concepts of reasonableness and justice in addition to compliance with national laws.223 As stated by the HRC in Mukong, ‘the drafting history of article 9, paragraph 1, confirms that “arbitrariness” is not to be equated with “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law’.224 3 At the same time, it should be kept in mind that unlike Article 15(1) of the Directive, the ECtHR court has so far refused to use the principles of proportionality and necessity in relation to initial detention order. According to the ECtHR, Article 5(1)(f) ECHR does not require that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example, to prevent his committing an offence or fleeing. The court holds in this respect that Article 5(1)(f) ECHR provides a different level of protection from Article 5(1)(c) ECHR and all that is required under this provision is that ‘action is being taken with a view to deportation’. Consequently, under the ECtHR case-law, it is immaterial, for the purposes of Article 5(1)(f), whether the underlying decision to expel can be justified under national or Convention law.225 This is where the Directive went further than the Strasbourg caselaw by introducing the initial necessity test for the pre-removal detention, which is in line with Article 6 CFR read in conjunction with Article 52(1) CFR. The latter stipulates that, ‘Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union.’ Therefore, the declaration in Recital 16 that ‘The use of detention for the purpose of removal should be limited and subject to the principle of proportionality with regard to the means used and objectives pursued’ is a direct consequence of the aforementioned provisions of the Charter.

II. Drafting history 1. Necessity grounds The drafting history provides an interesting insight into the scope of initial necessity test, especially in respect to the meaning of the notion ‘risk of absconding’ and its place in the necessity assessment, to the possibility of invoking public order grounds in the context of the necessity test as well as to the question whether the list of the detention grounds in Paragraph 1 is non-exhaustive. 5 As regards ‘risk of absconding’, according to the Commission proposal for the draft Article 14 (temporary custody), the entire necessity and proportionality test of initial detention had to be based only on the existence of such risk. Thus, the sole precondition for pre-removal detention (‘temporary custody’ – as the Commission used to call it) was the existence of ‘serious grounds to believe that there is a risk of absconding and where it would not be sufficient to apply less coercive measures (…) to prevent that risk.’226 This passage is interesting not only because it based the whole assessment process on a 4

already had occasion to point out that the International Covenant on Civil and Political Rights is one of the international instruments for the protection of human rights of which it takes account in applying the general principles of Community law (see, inter alia, Case 374/87 Orkem v Commission [1989] ECR 3283, paragraph 31; Joined Cases C-297/88 and C-197/89 Dzodzi [1990] ECR I-3763, paragraph 68; and Case C-249/96 Grant [1998] ECR I-621, paragraph 44).’ 223 Cornelisse, Immigration Detention and Human Rights, (Leiden, Boston 2010), p. 252. 224 Human Rights Committee, Womah Mukong v. Cameroon, Communication No. 458/1991, U.N. Doc. CCPR/C/51/D/458/1991 (1994), 10 August 1994, para. 9.8. 225 ECtHR, Judgment of 23 July 2013, No. 41872/10, M.A. v. Cyprus, para 206. 226 Commission Proposal, COM(2005) 391, p. 19.

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risk of absconding, but also because it explicitly linked the initial proportionality test, i. e. the application of less coercive measures, only to such a risk. However, throughout the negotiations within the Council, it became clear that, partly because there was some confusion about the meaning of a risk of absconding, Member States did not want to accept it as a sole criterion of the necessity of detention. This led not only to the introduction of a second independent ground of necessity, namely, avoiding or hampering the removal process,227 but also to an attempt of defining precisely the concept of a risk of absconding in draft Article 3 (h) as follows: ‘risk of absconding’ means the existence of particular reasons to believe that a third-country national who is subject to return procedures will abscond, for example: – if the person has illegally entered the territory of a Member State and has not subsequently obtained an authorisation to stay in that Member State; – if the person was intercepted at, or in the vicinity of the external border while trying to enter illegally the territory of a Member State; – if during the period of voluntary departure the person has changed place of residence without notifying the authorities of a change of address; – if the person has not complied with the measures adopted to ensure that he/she will abscond; – if the person has in the past evaded removal or frustrated removal efforts;’228 It might be interesting to know that according to the Commission, this list of 6 examples was inspired by the CoE Twenty Guidelines on Forced Return.229 The suggestion of Norway to add to the list the cases where a third-country national is withholding or concealing information about his/her or her identity230 was not retained. In the LIBE Report of the European Parliament231 a different approach was chosen for the definition of the risk of absconding. While the LIBE proposal did not list any examples relating to the existence of such risk, it did require that it be defined by ‘individual and objective criteria’. More importantly, the report also underlined that ‘the risk of absconding shall not automatically be deduced from the mere fact that a thirdcountry national is illegally resident on the territory of a Member State’232. This proposal could stand up to the Council’s corresponding position in the framework of trilogue negotiations, which is why in early 2008 the Presidency proposed a new version of the draft Article 3(h) in which the risk of absconding was defined as follows: ‘”risk of absconding” means the existence of reasons in an individual case which are based on objective criteria defined in national law to believe that a third-country national who is subject to return procedures will abscond.’233 During the subsequent discussions within the Council, AT (supported later by IT234) 7 favoured the deletion of the wording ‘based on objective criteria defined by national law’, while BE, ES, FR, MT and PL opposed to the deletion of the examples of risk of 227

See Council doc. 15165/1/06 of 5 November 2006, p. 4. Council doc. 14783/07 of 12 November 2007, p. 17. 229 Council doc. 13195/07 of 3 October 2007, p. 8. 230 Ibid. 231 European Parliament doc. A6-0339/2007 of 20.9.2007. 232 ‘Risk of absconding’ means the existence of serious reasons, defined by individual and objective criteria, to believe that a third-country national who is already subject to a return decision or a removal order might abscond; the risk of absconding shall not automatically be deduced from the mere fact that a third-country national is illegally resident on the territory of a Member State; 233 Council doc. 6541/08 ADD 1 of 15 February 2008, p. 10. 234 Council doc. 6965/08 of 14 March 2008, p. 13. 228

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absconding (AT also suggested to refer to certain examples in the preamble).235 The wording ‘will abscond’ has been replaced by ‘may abscond’,236 thus suggesting that the level of certainty of such risk had to be lower than required in the previous drafts. 8 The drafting history also entails an interesting indication to the question whether the list of necessity grounds in Article 15(1)(a) and (b) of the Directive is due to the word ‘in particular’ non-exhaustive. While the Commission proposal included in the draft Article 14 only ‘a risk of absconding’, already at the early stage of negotiations within the Council the second necessity ground was added to it. However, further discussions at the SCIFA in October 2007, led at the initiative of the French delegation to the removal of the specific necessity grounds from the draft Article 14(1), introducing instead a general necessity test linked to the purpose of detention as follows: ‘Member States shall keep in detention a third-country national, who is subject of return procedures, where this is necessary to prepare return and/or carry out the removal process unless other sufficient but less coercive measures can be applied in the concrete case.’237 9 Due to the objections expressed by certain Member States to this version of the draft Article 14,238 the two necessity grounds were brought back to the text. Even so, some Member States were still expressing their lack of satisfaction with the explicit mentioning of necessity grounds, considering them as additional conditions for detention: in the course of the negotiations within the Council in 2008, ES and FR suggested to delete the second necessity ground, i. e. avoiding/hampering the return, stressing that they would oppose additional conditions for detention.239 Later on, FR supported by CY, DE, AT and RO advocated for the deletion of both necessity grounds with the same argument, which was, however, opposed by BE and LU240, and, at the end, none of the mentioned objections won. As regards the wording ‘in particular’, it was at the initiative of PT that the wording ‘in particular when’ (instead of mere ‘when’) was inserted before two necessity grounds of detention. However, no explanation about the necessity of its insertion can be inferred from the relevant Council document.241 It is only known that BE and LU were favouring the deletion of ‘in particular’.242 Therefore, it seems that the inclusion of this phrase was a mere linguistic exercise without any deliberate farreaching consequences as suggested in certain writings. However, the temptation on the part of competent authorities to read into ‘in particular’ other possible grounds of detention, especially the public order grounds, might be high, but as will be shown below there is only one correct response to this question. 10 In fact, the possibility of invoking public order as an additional necessity ground was the object of controversy during the negotiations. From the very beginning, certain Member States243 were pleading for inserting them in the draft Article 14 next to ‘risk of absconding’. However, the Commission stressed that against the background of the legal basis of the proposal, i. e. Article 63(3)(b) TEC, the primary purpose of detention in draft Article 14 was to ensure that a TCN illegally staying in a MS would not frustrate the return procedure by absconding. Threats to public order or security would need to be addressed through other legislative means, and only if these other means resulted in 235

Council doc. 6541/08 ADD 1 of 15 February 2008, p. 10. Council doc. 6965/08 of 14 March 2008, p. 13. 237 Council doc. 14447/07 of 29 October 2007, p. 34. 238 This document was drafted as a result of discussions within the meeting of Working Party on Migration and Expulsion, held on 8 October 2007. 239 Council doc. 6541/08 ADD 1 of 15 February 2008, p. 25. 240 Council doc. 6965/08 of 14 March 2008, p. 26 241 Council doc. 6785/08 of 4 March 2008, p. 27. 242 Council doc. 7774/08 of 25 March 2008, p. 23 243 BE, DE, FR, HU, AT and PL. 236

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termination of legal stay would the future Directive also be applied.244 During the discussions within the SCIFA, Austria brought up again the issue of inclusion in the draft Article 14(1) of public order grounds which was repeatedly opposed by the Commission arguing that this suggestion would serve criminal law-related purposes outside the scope of the proposal.245 In the course of the negotiations within the Council in 2008, the same issue was raised again, this time by the Dutch delegation, which was opposed by the Commission and the Slovenian Presidency with the argument that this concern could be covered through the risk of absconding provision.246 Finally, the reference should be made to the EP’s LIBE Report, which included the public order grounds in the initial necessity test as an alternative to the risk of absconding.247 LIBE further favoured the inclusion of the same ground in the necessity assessment of the extension of a detention order up to 18 months, but once again, the European Commission was instrumental in keeping out the public order reasons from the wording of Article 15, justifying its opposition by the argument that the primary purpose of pre-removal detention based on the Directive was to ensure that the TCN concerned would not undermine the execution of the obligation to return by absconding and that it was not the purpose of this provision to protect society from persons being a threat to public policy or security or to allow the MS to use pre-removal detention as a form of ‘light imprisonment’.248

2. Alternatives to detention The initial Commission proposal not only linked the possibility of the application of 11 less coercive measures, i. e. alternatives to detention, with averting the risk of absconding, but it also gave specific examples of such less coercive measures, as follows: ‘where there are serious grounds to believe that there is a risk of absconding and where it would not be sufficient to apply less coercive measures, such as regular reporting to the authorities, the deposit of a financial guarantee, the handing over of documents, an obligation to stay at a designated place or other measures to prevent that risk.’249 During discussions within the Council’s Working Party on Migration and Expulsion 12 in September and October 2006250, the UK suggested replacing the term ‘sufficient’ with the term ‘appropriate’. It also pleaded for deleting the indicative list of measures, opting for a general reference, while AT wished to maintain that list. BE, CZ, PT and SK entered a reservation on the wording ‘less coercive measures’, emphasizing that MS may not be capable of implementing all these measures in their national legislation. However, the Commission clarified that it would not be required from the MS to have all these measures in their legislation, as long as there are some alternatives (as less coercive measures) to the option of detention.251 As a result of these discussions, the Presidency only replaced ‘such as’ by ‘for example’.252 At the September 2007 meetings of the Working Party on Migration and Expulsion253, 13 BE and CZ stressed, with regard to the alternatives to detention, that they did not have such measures in their legislation and their non-feasibility should not become a condi244

Council doc. 7774/08 of 25 March 2008, p. 23 Ibid. 246 Council doc. 6785/08 of 4 March 2008, p. 28. 247 There was no mention of avoiding/hampering the return in the LIBE report. 248 Lutz, The Negotiations on the Return Directive, p. 69. 249 Commission Proposal, COM(2005) 391, p. 19. Emphasis added. 250 See Council doc. 13934/06 of 18 October 2006, p. 2. 251 Ibid. 252 See Council doc. 15165/1/06 of 15 November 2006, p. 4. 253 Council doc. 13195/07 of 3 October 2007, p. 32 (footnote 60). 245

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tion for detention. The Commission pointed out that the obligation to consider noncustodial measures has been taken up by MS in the context of the CoE Guideline 5(1). At the same meetings, FR, IT, MT, AT and PL proposed disentangling the necessity grounds of detention in the draft Article 14 from alternatives to detention (replacing the word ‘and’ by ‘or’). The Commission, however, rejected this proposal, arguing again that this would run contrary to the CoE Guidelines 5(1). Besides, it pointed out, in this context, that alternatives to detention may not be considered at all by authorities where the risk of absconding is so high that it commands detention.254 By stating that the content of such less coercive measures could be clarified in a corresponding new recital, the examples of such measures were deleted in the Presidency’s proposal to SCIFA255 which did not elaborate further on this criterion during the further negotiations while also leaving untouched the provision concerning the voluntary departure, which also listed the same examples of less coercive measures to detention in the context of avoiding risk of absconding during the period of voluntary departure.256 14 Interestingly, during the subsequent negotiations among JHA Counsellors in November 2007 FI asked to reverse the order between detention and less coercive measures in order to show that detention should be the last resort.257 This suggestion seems to have found support among the MS as in the later versions of the draft Directive, the requirement of the application of less coercive measures was put at the beginning of the wording and ever since has not changed its place. However, another suggestion of FI to bring back the specific examples of the less coercive measures in the wording of the draft Article 14(1) seems to have not found sufficient support among the MS as they have never again appeared neither in the subsequent drafts nor in the final text of the Directive. Finally, it should be mentioned that the LIBE Report did not suggest any amendments which would modify the initial Commission proposal in terms of its wording related to the application of less coercive measures.258

3. The role of judiciary 15

The original Commission proposal foresaw in Paragraph 2 as a rule that detention orders had to be issued by judicial authorities and in only exceptional cases, by administrative authorities. In the latter case, the detention order had to be confirmed by judicial authorities within 72 hours from the beginning of the detention. Paragraph 3 of the draft Article 14 provided for the obligation for a monthly judicial review of detention. These both paragraphs have been substantially redrafted in the course of the negotiations as a result of the unwillingness of the Council to have a EU instrument not only imposing the harmonisation of the relevant national procedural rules, but also going beyond what in its view was required by the pertinent Strasbourg case-law.259 Subsequently, in Paragraph 2, the rule of a judicial authority usually ordering detention has been watered down while 72 hours for the review of initial detention has been replaced on the initiative of the Council by ‘as speedy as possible’. The proposed monthly judicial review of detention in Paragraph 3 has not found support in the Council either and was replaced by the current wording, which is similar to the CoE Guidline No. 8(2).260 254

Ibid., p. 31. Council doc. 13886/07 of 16 October 2007, p. 8. 256 Draft Art. 6a (3) in: Council doc. 14321/07 of 29 October 2007, p. 14. 257 Council doc. 14783/07 of 12 November 2007, p. 37. 258 European Parliament doc. A6-0339/2007 of 20.9.2007, p. 57. 259 Lutz, The Negotiations on the Return Directive, p. 67. 260 Ibid. 255

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4. Maximum length of detention The initial Commission proposal foresaw 6 months as the single upper time-limit for 16 detention.261 The EP was in favour of 3 plus 15 formula whereas the detention beyond 3 months had to be justified with (i) a lack of cooperation by a TCN, (ii) delays in obtaining documentation from third countries or (iii) threat to public order.262 The Council wanted 6 months as a general rule plus unlimited detention in cases of (i) lack of cooperation, (ii) delays in obtaining documentation and (iii) pending appeal procedures.263 It is worthwhile mentioning that while the Council accepted the deletion of pending appeal procedures as a third ground for prolonged detention, it did not follow the request of the EP to link the delays in obtaining necessary documentation from third countries to the behaviour of the TCN concerned causing such a dely.264 As regards public order grounds as an additional reason for prolonged detention, as mentioned above (MN 10), the Commission was successful in persuading the colegislators that this reason was not in line with the scope and purpose of the Directive.

III. Detention 1. Institutional and procedural framework Under Paragraph 2(1), detention has to be ordered either by an administrative or a 17 judicial authority. It should be mentioned here that according to the ECtHR case-law relating to Article 5 ECHR, ‘a period of detention will in principle be lawful if it is carried out pursuant to a court order’.265 Therefore, as the Directive does not provide for an exclusive judicial power to order detention, it is imperative that whenever detention is ordered by an administrative authority, the access to a judicial remedy is effectively guaranteed in practice. This is all the more important in cases provided in Paragraph 3(3)(b), where the judicial review – unlike Paragraph 3(3)(a) – is not automatic but has to be initiated by the TCN concerned. The ECtHR case-law on Article 5(4) ECHR (‘Everyone who is deprived of his liberty 18 by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’) gives helpful indications as to the access to, and the scope of, the judicial review of the lawfulness of detention. According to the Court, the purpose of Article 5(4) ECHR is to assure to detained persons the right to judicial supervision of the lawfulness of the detention.266 The Court interprets Article 5(4) ECHR as requiring that the remedy, which must be made available during a person’s detention to allow him or her to obtain speedy judicial review of the lawfulness of the detention, must be sufficiently certain, not only in theory but also in practice, failing which it will lack the accessibility and effectiveness required for the purposes of that provision.267 The accessibility of a remedy implies, inter alia, that the circumstances 261

Commission Proposal, COM(2005) 391, p. 19. Lutz, The Negotiations on the Return Directive, p. 68. 263 Ibid. 264 Ibid., p. 69. 265 See ECtHR, Judgment of 25 October 2007, No. 4493/04, Lebedev v. Russia, para 54 with reference to ECtHR, Judgment of 4 August 1999, No. 31464/96, Douiyeb v. the Netherlands, paras 44–45. 266 ECtHR, Judgment of 24 April 2008, No. 2947/06, Ismoilov and Others v. Russia, para 45. 267 ECtHR, Judgment of 24 March 2005, No. 9808/02, Stoichkov v. Bulgaria, paras 66 et seq; ECtHR, Judgment of 8 July 2004, No. 42987/98, Vachev v. Bulgaria, para 71. 262

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voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy.268 19

a) Scope and intensity of judicial review. The Strasbourg court holds that even if Article 5(4) ECHR does not guarantee a right to judicial review of such a scope as to empower judicial authorities, on all aspects of the case including questions of pure expediency, to substitute their own discretion for that of the decision-making authority, the review should be wide enough to bear on those conditions which are essential for the detention of a person to be ‘lawful’.269 The reviewing ‘court’ must have the competence to ‘decide’ the ‘lawfulness’ of the detention and to order release if the detention is unlawful.270 According to the ECtHR, although it is not always necessary that an Article 5(4) ECHR procedure be attended by the same guarantees as those required under Article 6, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question.271 It should be stressed here that as mentioned in the commentary to Article 13 of the Directive, Article 47 CFR integrates the guarantees of Article 6 in the right to a judicial remedy. Therefore, despite the mentioned statement of the Strasbourg court, the judicial review of the lawfulness of detention has to comply with the requirements of the right to a fair hearing, which have been elaborated on above. Back to the relevant Strasbourg case law, it should also be mentioned that the Court does not interpret Article 5(4) ECHR as compelling the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention. However, if a State institutes such a system, it must in principle afford to the detainees the same guarantees on appeal as at first instance.272 In this regard, the Court holds that while Article 5(4) ECHR does not impose an obligation to address every argument contained in the detainee’s submissions, the judge must take into account concrete facts which are referred to by the detainee and are capable of casting doubt on the existence of those conditions essential for the ‘lawfulness’ of the detention.273 A similar standard was set by the ECJ in the case of Mahdi, in which the court held that the judicial authority ruling on an application for extension of detention must be able to take into account both the facts stated and the evidence adduced by the administrative authority and any observations that may be submitted by the thirdcountry national.274 According to the ECJ, that authority must moreover be able to consider any other element that is relevant for its decision should it so deem necessary and its powers can thus under no circumstances be confined just to the matters adduced by the administrative authority concerned.275

20

b) Speediness of the review. As regards the speediness of the review, required by Paragraph 2(3), here too, the Strasbourg Court has laid down strict standards in its 268 ECtHR, Judgment of 24 April 2008, No. 2947/06, Ismoilov and Others v. Russia, para 45; ECtHR, ˇ onka v. Belgium, paras 46 and 55. Judgment of 5 February 2002, No. 51564/99, C 269 ECtHR, Judgment of 7 November 2013, No. 43165/10, Ermakov v. Russia, para 264. 270 ECtHR, Judgment of 7 November 2013, No. 43165/10, Ermakov v. Russia, para 264, with reference to ECtHR, Judgment of 19 February 2009, No. 3455/05, A. and Others v. the United Kingdom [GC], para 202. 271 ECtHR, Judgment of 7 November 2013, No. 43165/10, Ermakov v. Russia, para 264, with reference to ECtHR, Judgment of 19 February 2009, No. 3455/05, A. and Others v. the United Kingdom [GC], para 203. 272 ECtHR, Judgment of 7 November 2013, No. 43165/10, Ermakov v. Russia, para 264, with reference to ECtHR, Judgment of 9 March 2006, No. 66820/01, Svipsta v. Latvia, para 129. 273 ECtHR, Judgment of 6 December 2011, No. 45875/06, Rafig Aliyev v. Azerbaijan, para 109; ECtHR, Judgment of 25 March 1999, No 31195/96, Nikolova v. Bulgaria, para 61. 274 ECJ, Mahdi, C-146/14 PPU, EU:C:2014:1320, para 62. 275 Ibid.

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case-law on Article 5(4) ECHR and considered, for instance, that time periods of twenty-one, seventeen and twenty-three days, respectively, were excessive, being in violation of the right to a speedy judicial decision concerning the lawfulness of the detention guaranteed under the mentioned provision.276 In general, the Court requires that the question whether the right to a speedy decision has been respected must be determined in the light of the circumstances of each case.277 Consequently, although the number of days taken by the relevant proceedings is an important element, it is not necessarily in itself decisive for the question of whether a decision has been given with the requisite speed.278 What is taken into account is the diligence shown by the authorities, the delay attributable to the applicant, and any factors causing delay for which the State cannot be held responsible.279 It should be mentioned here that for the ECtHR, the standard of ‘speediness’ is less stringent when it comes to proceedings before a court of appeal.280 c) Specific procedural safeguards. Although Paragraph 2 mentions only the duty to 21 give reasons and the obligation to inform the detainee about the possibility of judicial review of lawfulness of detention, all other procedural safeguards which are part of the rights of the defence and the right to an effective judicial remedy must be respected in the context of detention under the Directive.281 The ECJ had already an occasion to stress in the context of interpretation of Article 15 22 that according to its settled case-law the rights of the defence, which include the right to be heard and the right to have access to the file, and which are among the fundamental rights forming an integral part of the European Union legal order, have to be observed even where the applicable legislation does not expressly provide for such a procedural requirement.282 Specifically on the right to be heard before the adoption of an administrative decision on detention, the Court held that as neither the conditions under which observance of the third-country nationals’ right to be heard is to be ensured, nor the consequences of the infringement of that right, are laid down by the Directive, those conditions and consequences have to be governed by national law, provided that the rules adopted to that effect are the same as those to which individuals in comparable situations under national law are subject (principle of equivalence) and that they do not make it impossible in practice or excessively difficult to exercise the rights of defence conferred by the European Union legal order (principle of effectiveness).283 Concerning the impact of the violation of the right to be heard on the lawfulness of detention, the ECJ held that it does not automatically lead to the unlawfulness of detention and a national court may order lifting of the detention measure only if the violation of that right actually deprived the detainee of the possibility of arguing his defence better, to the extent that the outcome of that administrative procedure could have been different.284 Another issue which the ECJ has so far clarified with regard to procedural safeguards 23 under Article 15, not explicitly mentioned in this provision, is the obligation to issue the 276

ECtHR, Judgment of 23 July 2013, No. 41872/10, M.A. v. Cyprus, paras 162–163. Ibid., 163. 278 ECtHR, Judgment of 19 February 2013, No. 39786/09, Yefimova v. Russia, para 208. 279 Ibid., with reference to ECtHR, Judgment of 21 December 2000, No. 33492/96, Jablonski v. Poland, paras 91–9. 280 ECtHR, Judgment of 25 October 2007, No. 4493/04, Lebedev v. Russia, para 96. 281 See for further details above Articles 12 and 13. 282 ECJ, G. and R., C-383/13 PPU, EU:C:2013:533, para 32. 283 ECJ, G. and R., C-383/13 PPU, EU:C:2013:533, para 35. 284 ECJ, G. and R., C-383/13 PPU, EU:C:2013:533, para 45. For a critical review of this judgment see De Bruycker and Mananashvili, ‘Audi alteram partem in immigration detention procedures, between the ECJ, the ECtHR and Member States: G & R’, CML Rev 2(2015), p. 569–590. 277

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detention decisions in writing. While Paragraph 2(2) mentions such an obligation only with regard to an initial detention order, the ECJ interpreted Article 15 read in conjunction with Articles 6 and 47 CFR as requiring that all decisions concerning extension of detention had also to be given in writing.285 This was justified with the argument that detention and extension of detention are similar in nature since both deprive the TCN concerned of his liberty and in both cases the person concerned must be in a position to know the reasons for the decision taken concerning him.286 The court once again made the link between this obligation and the effective use of the right to a remedy.287 However, the Court narrowed down this obligation, stating that the authorities carrying out the review of detention at regular intervals pursuant to the first sentence of Article 15(3) are not obliged, at the time of each review, to adopt an express measure in writing that states the factual and legal reasons for that measure.288 Only when the authority reviewing the lawfulness of detention at the end of initial six-month period takes also a decision on the further course of detention is it under the obligation to adopt a written reasoned decision.289 24 In the context of the duty to state reasons in detention orders, which should be exercised in compliance with the relevant Charter and ECJ standards (see above Article 12), an additional reference should be made to the relevant Strasbourg case-law according to which the absence of elaborate reasoning for an applicant’s deprivation of liberty renders that measure incompatible with the requirement of lawfulness inherent in Article 5 of the Convention.290 d) Periodic reviews. Paragraph 3 – as hinted before – provides that detention of a TCN must, in every case, be reviewed at reasonable intervals of time, either on application of the person concerned or ex officio. Under the mentioned provision, it is not mandatory that such review be always exclusively conducted by a judicial authority. Administrative authorities can thus be designated to be in charge of the periodic reviews. Paragraph 3 imposes, however, that in the case of prolonged detention periods, reviews which can be either initiated on application of the thirdcountry national concerned or conducted ex officio must be subject to the supervision of a judicial authority.291 26 The ECJ interpreted the word ‘supervision’ as indicating that a judicial authority which is deciding on the possibility of extending an initial period of detention must carry out an examination of the detention, even if the authority which brought the matter before it has not expressly asked it to do so and even if the detention of the TCN concerned has already been reviewed by the authority which made the initial detention order.292 In addition, the Court specified that the ‘supervision’ must permit the judicial authority to decide, on a case-by-case basis, on the merits of whether the detention of the third-country national concerned should be extended, whether detention may be replaced with a less coercive measure or whether the person concerned should be released. Accordingly, as indicated above, that authority must have power to take into account the facts stated and evidence adduced by the administrative authority which has 25

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ECJ, Mahdi, C-146/14 PPU, EU:C:2014:1320, paras 43 and 54. ECJ, Mahdi, C-146/14 PPU, EU:C:2014:1320, para 44. 287 ECJ, Mahdi, C-146/14 PPU, EU:C:2014:1320, para 45. Cf. above Article 12. 288 ECJ, Mahdi, C-146/14 PPU, EU:C:2014:1320, para 47. 289 ECJ, Mahdi, C-146/14 PPU, EU:C:2014:1320, para 48. 290 ECtHR, Judgment of 20 September 2011, No. 10816/10, Lokpo and Toure ´ v. Hungary, para 24 and the case-law cited. 291 To the interpretation by the Commission of the phrase “prolonged detention” and the need for ex officio judicial review see Commission Return Handbook, p. 83. 292 ECJ, Mahdi, C-146/14 PPU, EU:C:2014:1320, para 56. 286

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brought the matter before it, as well as any facts, evidence and observations which may be submitted to the judicial authority in the course of the proceedings.293 As regards the forms of periodic review and the interpretation of the phrase ‘at 27 reasonable intervals of time’ in Paragraph 3, here again, the reference should be made to the relevant Strasbourg case-law. First of all, it needs to be stressed that according to the ECtHR, by virtue of Article 5(4) 28 ECHR, a detainee is entitled to apply to a ‘court’ having jurisdiction to ‘speedily’ decide whether or not his or her detention has become ‘unlawful’ in the light of new factors which have emerged subsequently to the initial detention decision.294 Therefore, when implementing Article 15(3) of the Directive, Member States must ensure that the TCN concerned have access to a judicial (and not administrative) remedy in the cases where new factors putting in question the lawfulness of initial detention emerge. According to the ECtHR, the forms of judicial review satisfying the requirements of 29 Article 5(4) ECHR may vary from one domain to another and it is not excluded that a system of automatic periodic review of the lawfulness by a court may ensure compliance with the requirements of Article 5(4) ECHR.295 However, long intervals in the context of automatic periodic reviews may give rise to a violation of the mentioned provision.296 The question of whether periods comply with the requirement of ‘reasonable interval’ is determined by the Strasbourg court in light of the circumstances of each case, while the main focus falls on the question whether any new relevant factors arisen in the interval between periodic reviews were assessed, without unreasonable delay, by a court having jurisdiction to decide whether or not the detention has become ‘unlawful’ in light of these new factors.297

2. Purposes of detention By stating that ‘Member States may only keep in detention a third-country national 30 who is the subject of return procedures in order to prepare the return and/or carry out the removal process’,298 Paragraph 1 differentiates between two possible purposes of detention: the removal and the preparation of the return. It seems that ‘to prepare the return’ is used in the Directive as a collective term which covers all stages of return procedures which are not the actual removal process stricto sensu, i. e. the execution of a removal decision which, under certain circumstances, can be adopted at a later stage than the return decision.

3. Necessity of initial detention When deciding whether to detain an illegally staying TCN, a competent adminis- 31 trative or judicial authority, after establishing that the detention pursues one of the 293

ECJ, Mahdi, C-146/14 PPU, EU:C:2014:1320, para 64. ECtHR, Judgment of 2 October 2012, No. 14743/11, Abdulkhakov v. Russia, para 208. 295 ECtHR, Judgment of 17 July 2014, Nos. 42351/13 and 47823/13, Kadirzhanov and Mamashev v. Russia, para 129. 296 Ibid. According to the Commission Return Handbook, p. 83, ‘Based on a linguistic comparison of the term “prolonged detention” (DE: “Bei la¨ngerer Haftdauer”; FR: “En cas de pe´riodes de re´tention prolonge´es”; NL: In het geval van een lange periode van bewaring ES: En caso de periodos de internamiento prolongados IT: Nel caso di periodi di trattenimento prolungati;….) it is clear that this term refers in substance to “a long period of detention” independently of the fact that a formal decision on prolongation was already taken or not. Whilst an interval of 6 months for the first ex-officio judicial review is certainly too long, a three monthly ex-officio judicial review may be considered at the limit of what might still be compatible with 15(3), provided that there is also a possibility to launch individual reviews upon application if needed.’ 297 ECtHR, Judgment of 2 October 2012, No. 14743/11, Abdulkhakov v. Russia, para 215. 298 Emphasis added. 294

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legitimate purposes mentioned above, has to ascertain in the first place that the necessity grounds listed in Paragraph 1 exist and that the obstructive conduct of the TCN concerned cannot be remediated by the application of less coercive measures than detention. Two explicit examples of an obstructive conduct of a TCN are given in Paragraph 1 for the purposes of the initial blame attribution at the adoption stage of a first detention order: (a) the existence of a risk of absconding (Article 15(1)(a)), or (b) the avoidance or hampering of the preparation of return or the removal process on the part of the TCN concerned (Article 15(1)(b)). a) Risk of absconding. To understand the meaning of the risk of absconding in Article 15(1)(a), it is necessary to refer to Article 3(7), which delineates the boundaries of this notion as follows: ‘“risk of absconding” means the existence of reasons in an individual case which are based on objective criteria defined by law to believe that a third-country national who is the subject of return procedures may abscond’. This definition suggests that without national laws of MS specifying objectively when such a risk exists, Article 15(1)(a) cannot be relied on for the pre-return deprivation of liberty. Furthermore, as despite the reference to national laws, the concepts in Article 15(1) have European law meaning,299 even in those cases where national laws set specific criteria for establishing a risk of absconding, the question whether they are objective might be subject to review by the ECJ. 33 By stating that ‘consideration should go beyond the mere fact of an illegal stay’, Recital 6 excludes illegal stay or even illegal entry alone300 from the list of ‘objective criteria’.301 Such contextual interpretation opposes the validity of the first example listed in the definition of the risk of absconding included in the previous Council drafts, which justified the assumption of the existence of such risk when a TCN has illegally entered the territory of a Member State and has not subsequently obtained an authorisation to stay in that Member State (see above RN 5). As regards other examples listed in Council proposals referring to the situations where a TCN does not notify the authorities about the change of address during the period of voluntary departure or where the general assumption of absconding can be based on the previous conduct of the TCN concerned who has already evaded the removal or did not comply with alternative measures of detention, these criteria largely correspond to what has been suggested in the CoE Twenty Guidelines on Forced Return, and seem to be generally accepted as the grounds of the presumption of the risk of absconding.302 34 The list of general assumptions that there might be a risk of absconding can be long,303 but the crucial element in the relevant assessment is the individual situation: whatever the objective general criteria, the phrase ‘in an individual case’ read in conjunction with recital 6, which states that ‘decisions taken under this Directive should be adopted on a case-by-case basis and based on objective criteria’, implies that even 32

299

See Acosta, in Peers et al (eds), EU Immigration and Asylum Law, p. 502. Schieffer, in Hailbronner (ed), EU Immigration and Asylum Law, p. 1517. 301 See further: Acosta, in Peers et al (eds), EU Immigration and Asylum Law, p. 495; EU Fundamental Rights Agency, Detention of third-country nationals in return procedures (2010), p. 27, available at: http://fra.europa.eu/sites/default/files/fra_uploads/1306-FRA-report-detention-december-2010_EN.pdf [last accessed 10 March 2015]. 302 Cf. EU Fundamental Rights Agency, Detention of third-country nationals in return procedures (2010), p. 28, available at: http://fra.europa.eu/sites/default/files/fra_uploads/1306-FRA-report-detentiondecember-2010_EN.pdf [last accessed 10 March 2015]. Schieffer, in Hailbronner (ed), EU Immigration and Asylum Law, p. 1517–1518. 303 See on this point De Bruycker/Mananashvili, The Extent of Judicial Control of Pre-Removal Detention in the EU (2014), p. 18 et seq., available at: http://contention.eu/synthesis-reports/ [last accessed 10 March 2015]. 300

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when such criteria are set, the general presumption of the existence of the risk of absconding is not sufficient and individual situation and individual circumstances must be taken into consideration additionally (cf. above Article, MN 22/23).304 For instance, the failure to report to the competent authorities a change of address during (or after the expiration of) the period of voluntary departure can be justified by serious health grounds requiring hospitalization or the need to remain at rest.305 Similarly, the criminal record alone and the subsequent assumption that the TCN concerned might abscond as he or she has shown thereby the lack of respect for the national laws, is per se not a sufficient ground for the necessity of detention.306 Moreover, if the assessment is based on the previous conduct of the person concerned, the lapse of time between such conduct and the actual assessment might also be relevant.307 On the other hand, however, while an illegal entry alone or even the use of smugglers cannot sufficiently establish an individual risk of absconding, certain individual situations such as the high financial expenditure to enter illegally the territory of MSs can be a valid indication that the person concerned might abscond.308 The German Federal Court, for instance, considers in this respect that 5.000 EUR paid to smugglers can be a sufficient ground to believe that a TCN might abscond.309 b) Avoiding or hampering the preparation of return or the removal process. There 35 is no explicit mention in the Directive of how the fact of avoiding or hampering of return or the removal process has to be established and what is specifically meant by these two concepts. The relevant travaux pre´paratoires, as presented above, also do not give any clear picture in this regard. In fact, the second example listed in the previous version of the definition of ‘risk of absconding’, i. e. a change of address without any notification during the voluntary departure, can fit into ‘avoiding the preparation of return or the removal process’, while the suggestion of the Norwegian delegation at the Working Party, to include in the concept of risk of absconding cases where a TCN is withholding or concealing information about his/her identity, can be considered in the context of ‘hampering the preparation of return’. However, apart from these two examples, there was no further discussion on this issue within the Council, and it is difficult to guess which particular cases the delegations had in mind when suggesting the insertion of this additional necessity ground in the draft Article 14. Avoiding the preparation of return or the removal process might cover, in general, 36 the failure to appear before competent authorities following convocation or to stay in touch with them when this is explicitly required.310 As regards hampering the preparation of return or the removal process this is a 37 rather broad concept. It can cover a wide range of cases, in particular, when a TCN 304

ECJ, El Dridi, Case C-61/11 PPU, EU:C:2011:268, para 39. See EU Fundamental Rights Agency, Detention of third-country nationals in return procedures (2010), p. 28, available at: http://fra.europa.eu/sites/default/files/fra_uploads/1306-FRA-report-detentiondecember-2010_EN.pdf [last accessed 10 March 2015]. 306 Drews, ‘Die aktuelle Rechtsprechung des BGH zur Sicherungshaft nach dem Aufenthaltsgesetz’, Neue Zeitschrift fu¨r Verwaltungsrecht (2012), p. 396, referring to the decision of the German Bundesgerichtshof (Federal Court of Justice) from 14.7.2011 – V ZB 50/11, BeckRS 2011, 21191. 307 Ibid., with reference to German Bundesgerichtshof (Federal Court of Justice), Beschl. V. 28.4.2011 – V ZB 14/10, BeckRS 2011, 14044. 308 Drews, ‘Die aktuelle Rechtsprechug des BGH zur Sicherungshaft nach dem Aufenthaltsgesetz’, Neue Zeitschrift fu¨r Verwaltungsrecht (2013), p. 259. 309 German Bundesgerichtshof (Federal Court of Justice), Beschl. v. 03.05.2012 – V ZB 244/11, BeckRS 2012, 14183. 310 § 62(1) of the German Residence Act, for instance, lists two explicit examples of such conduct: i. when a TCN fails to appear at the location stipulated by the foreigners authority on a date fixed for deportation, for reasons for which he or she is responsible; and 305

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hampers the establishment of crucial facts necessary to carrying out the return procedures, such as his or her real identity or the country of origin by: i. false or misleading statements (or simply by silence); ii. intentional damaging of fingerprints; iii. destroying or holding back identity and other documents which can serve as a proof or a prima facie evidence of citizenship, former permanent residence (in cases of stateless persons) or country of transit; iv. not-cooperating during the interview with a relevant consular representation, conducted with a view to establishing the country of nationality. 38

Other examples of an obstructive conduct on the part of the third-country nationals concerned are the cases when they hamper the process of issuing a travel document (a passport or a laissez-passer) by not letting authorities to take their photo, by refusing to file an application or to their signature on it if these are the necessary requirements for obtaining such documents, or, in general, when they do not cooperate at any stage of return procedures where such a cooperation is indispensable for the (smooth) execution of return procedures.311

4. Alternatives to detention 39

The assessment whether ‘other sufficient but less coercive measures can be applied effectively in a specific case’, is the cornerstone of the proportionality test introduced in Article 15(1). The CJEU had an opportunity in El Dridi to express its opinion on this issue. According to the Court, ‘it follows from recital 16 in the preamble to that directive and from the wording of Article 15(1) that the Member States must carry out the removal using the least coercive measures possible. It is only where, in the light of an assessment of each specific situation, the enforcement of the return decision in the form of removal risks being compromised by the conduct of the person concerned that the Member States may deprive that person of his liberty and detain him.’312

The reference should also be made to Recital 16 which declares that ‘the use of detention for purpose of removal should be limited’, suggesting that detention has to be rather the exception than the rule. 41 Paragraph 1 does not give any indication about how far the MS need to go in providing for alternatives to detention in their national legislation. As shown above (see MN 12), the Commission argued during the negotiation process that it would not be required from the MS to have all these measures in their legislation, as long as there are some alternatives (as less coercive measures) to the option of detention. In this respect, it should be further referred to Article 8(4) of the Asylum Reception Conditions Directive 2013/32/EU, which unlike the relevant provisions of the Return Directive clearly states that 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 at an assigned place, ‘are laid down in national law.’ 40

ii. when the period allowed for (voluntary) departure has expired and the TCN has changed his or her place of residence without notifying the foreigners authority of an address at which he or she can be reached. 311 For the relevant practice of certain MS see: De Bruycker/Mananashvili, The Extent of Judicial Control of Pre-Removal Detention in the EU (2014), p. 23–25, available at: http://contention.eu/synthesis-reports/ [last accessed 10 March 2015]. 312 ECJ, El Dridi, C-61/11 PPU, EU:C:2011:268, para 39. See for the position of the Commission on the use of alternative to detention: Commission Return Handbook, p. 79–80.

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The transposition of this article into the national legislation of the Member States will therefore have a direct impact on the application of the proportionality test according to the Return Directive. The questions which may arise in the context of the initial proportionality assessment 42 is (i) whether the competent administrative or judicial authorities are required to assess every available or possible alternative to detention,313 and (ii) in which order should they proceed? While the positive response to the first question can be inferred from the principle of proportionality itself, an indication about how to answer the second question can be found in the relevant case-law of the ECJ. In El Dridi, the Court articulated a system of gradation introduced by the Directive as follows: ‘the order in which the stages of the return procedure established by Directive 2008/115 are to take place corresponds to a gradation of the measures to be taken in order to enforce the return decision, a gradation which goes from the measure which allows the person concerned the most liberty, namely granting a period for his voluntary departure, to measures which restrict that liberty the most, namely detention in a specialised facility; the principle of proportionality must be observed throughout those stages.’314

Thus, it can be assumed that in line with this system of gradation, the national 43 authorities have to consider alternatives to detention in a hierarchical order, starting with the consideration of those measures which are least intrusive for the personal liberty of the TCN concerned. The following hierarchy proposed by the UNHCR can provide helpful guidance for the proportionality assessment: – Liberty – Registration and/or deposit of documents – Bond/bail – Reporting conditions – Community release/supervision – Designated residence – Electronic tagging – Home curfew – Detention.315 313 To the available alternatives to detention in MSs see: Fundamental Rights Agency, Annual Report 2012, Fundamental Rights: Challenges and Achievements in 2012 (2013), p. 52–54, available at: http:// bit.ly/1cQheHK [last accessed 10 March 2015]. 314 ECJ, El Dridi, C 61/11 PPU, EU:C:2011:268, para 41. See also Sarole ´a/D’Huart, La Re´ception de la Directive Retour en Droit Belge (EDEM, 2013), p. 63, available at: http://contention.eu/docs/La%20 Reception%20de%20la%20Directive%20Retour%20en%20Droit%20Belge.pdf [last accessed 10 March 2015]. 315 UNHCR, Guidelines on the Applicable Criteria and Standards relating to the Detention of AsylumSeekers and Alternatives to Detention (2012), p. 23, available at: http://www.refworld.org/docid/ 503489533b8.html [last accessed 10 March 2015], p. 23. See further on alternatives to detentions: EU Fundamental Rights Agency, Detention of third-country nationals in return procedures (2010), p. 49 et seq., available at: http://fra.europa.eu/sites/default/files/fra_uploads/1306-FRA-report-detention-december2010_EN.pdf [last accessed 10 March 2015]. UNHCR, Global Roundtable on Alternatives to Detention of Asylum-Seekers, Refugees, Migrants and Stateless Persons: Summary Conclusions (2011), available at: http://www.refworld.org/docid/4e315b882.html [last accessed 10 March 2015]; Costello/Kaytaz, Building Empirical Research into Alternatives to Detention: Perceptions of Asylum-Seekers and Refugees in Toronto and Geneva, PPLA/2013/02, (UNHCR, 2013), available at: http://www.refworld.org/docid/51a6fec84.html [last accessed 10 March 2015]; Edwards, Back to Basics: The Right to Liberty and Security of Person and ‘Alternatives to Detention’ of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants, PPLA/2011/ 01.Rev.1 (UNHCR, 2011), available at: http://www.refworld.org/docid/4dc935fd2.html [last accessed 2 April 2015]; UN, Report of the Special Rapporteur on the human rights of migrants, F. Cre´peau, A/HRC/20/24 (2012), p. 13 et seq., available at: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/ Session20/A-HRC-20-24_en.pdf [last accessed 10 March 2015]; Jesuit Refugee Service, From Deprivation to Liberty: Alternatives to detention in Belgium, Germany and the United Kingdom (2011), available at: http://

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Finally, it should be kept in mind that as in case of the assessment of the necessity grounds, an individual, case-by-case evaluation is also required, as suggested not only by Recital 6, but also by the explicit wording of Article 15(1) as well as by the abovecited dictum from El Dridi.316 This would oppose any group- or nationality-based automatic general assumptions.317

5. The proportionality of the length of detention Paragraph 1(2) requires that any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence. The wording ‘as short a period as possible’ is identical to the relevant phrase from the CoE Guidline 8(1),318 and it was included in the draft Article 14 at a later stage of negotiations, inspired by the mentioned Guideline and in order to comply with the ‘spirit’ of the EP’s amendments.319 46 Paragraph 1(2) needs to be interpreted in conjunction with paragraph 5, which states that ‘detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal.’ Similarly, in Kadzoev the CJEU stated in this regard that: ‘As is apparent from Article 15(1) and (5) of Directive 2008/115, the detention of a person for the purpose of removal may only be maintained as long as the removal arrangements are in progress and must be executed with due diligence, provided that it is necessary to ensure successful removal.’320 This link between the length and the purpose of detention is in line with the relevant Strasbourg case-law, according to which in order to avoid arbitrariness, the length of the detention under Article 5(1)(f) ECHR should not exceed that reasonably required for the purpose pursued.321 As a result, the Court requires that based on the principle of proportionality applied to the length of detention, the latter should not continue for an unreasonable length of time.322 In the Strasbourg case-law, the reasonableness of the length of detention is linked – similarly to Article 15(1)(2) of the Directive – to deportation proceedings being in progress and pursued with due diligence. The Court holds in this regard that ‘any deprivation of liberty under Article 5(1)(f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible.’323 45

www.refworld.org/docid/4f0c10a72.html [last accessed 10 March 2015]; De Bruycker/Bloomfield/Tsourdi/ Pe´tin, Alternatives to Immigration and Asylum Detention in Europe, Time for Implementation (2015), available at: http://odysseus-network.eu/wp-content/uploads/2015/02/FINAL-REPORT-Alternatives-to-detention-in-the-EU.pdf [last accessed 10 March 2015]. 316 Cf. Sarole ´a/D’Huart, La Re´ception de la Directive Retour en Droit Belge (EDEM, 2013), p. 63, available at: http://contention.eu/docs/La%20Reception%20de%20la%20Directive%20Retour%20en%20Droit%20Belge.pdf [last accessed 10 March 2015]. 317 On current challenges in the application of the initial proportionality test see De Bruycker/ Mananashvili, The Extent of Judicial Control of Pre-Removal Detention in the EU (2014), p. 26 et seq., available at: http://contention.eu/synthesis-reports/ [last accessed 10 March 2015]. 318 Council of Europe, Twenty Guidelines on Forced Return, September 2005, p. 30. 319 Council doc. 6541/08 ADD 1 of 15 February 2008, p. 25. 320 ECJ, Kadzoev, C-357/09 PPU, EU:C:2009:741, para 64. 321 See recently ECtHR, Judgment of 23 July 2013, No. 42337/12, Suso Musa v. Malta, para 93 and the case-law cited. 322 ECtHR, Judgment of 11 July 2006, No. 13229/03, Saadi v. the United Kingdom, para 72. 323 Ibid. See also ECtHR, Judgment of 15 November 1996, No. 22414/93, Chahal v. the United Kingdom, para 113; ECtHR, Judgment of 26 April 2007, No. 25389/05, Gebremedhin [Gaberamadhien] v. France, para 74; ECtHR, Judgment of 19 December 2013, Nos. 33441/10, 33468/10 et 33476/10, C.D et autres c. Gre`ce, para. 8.

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a) Due Diligence. The due diligence requirement is a well-established criterion in the 47 relevant Strasbourg case-law. In its judgment in the case Djalti v. Bulgaria324 which concerned an Algerian citizen who did not have a travel document necessary for his expulsion and whose detention lasted for the period exceeding 1 year and 3 months, the court found that despite the fact that the detainee was not inclined to cooperate, had refused to take a passport picture and did not want to meet with the representatives of the Algerian embassy, the mere fact of writing to the Algerian consulate requesting the issuance of the travel document was not sufficient to qualify the actions as conducted with due diligence.325 The Court indicated that by failing to provide the Algerian consulate with additional information the consulate requested from the Bulgarian authorities as well as by not undertaking other necessary actions to set aside the obstacles for the successful removal, the Bulgarian authorities did not show sufficient diligence required by Article 5(1)(f) ECHR.326 In another case against Bulgaria (Amie and Others v. Bulgaria), the Strasbourg court held that 4 written requests within 1 year and 8 months addressed to the Lebanese Embassy in Sofia with regard to issuing a travel document, even if the Bulgarian authorities could not compel the issuing of such a document, was not sufficient for satisfying the requirement of due diligence. Accordingly, the court found that by failing to pursue the matter vigorously and by not endeavouring to enter into negotiations with the Lebanese authorities with a view to expediting the delivery of the travel document, the Bulgarian authorities violated Article 5(1)(f) ECHR.327 Similarly, in the case of Singh v. The Czech Republic, a 5 to 7 month inactivity on the part of the returning country’s competent authorities, despite the lack of cooperation of the embassy of the country of possible destination, was also declared by the court as breaching the due diligence obligation under Article 5(1)(f) ECHR.328 b) Removal arrangements in progress. The requirement of Paragraph 1(2) that 48 detention shall only be maintained as long as ‘removal arrangements are in progress’ is also congruent with the corresponding requirement from Article 5(1)(f) ECHR. In the view of the ECtHR, where domestic expulsion proceedings are suspended or blocked as a consequence of the application of the Rule 39, that does not in itself render the detention of the person concerned unlawful, provided that the authorities still envisage expulsion at a later stage, and on condition that the detention must not be unreasonably prolonged.329 Hence, despite the fact that proceedings are suspended, the court considers the requirement ‘action is being taken’ as, nevertheless, fulfilled in these cases.330 Similarly, when expulsion is suspended or blocked as a consequence of internal judicial review proceedings, the ECtHR considers them as a part of the deportation proceedings being ‘in progress’.331 Nonetheless, according to the Court, throughout the entire period of detention the proceedings on determining whether it would be lawful and compatible with the Convention to proceed with deportation have to be pursued actively and diligently.332 324

ECtHR, Judgment of 12 March 2013, No 31206/05, Djalti c. Bulgarie. Ibid., para 53. 326 Ibid., para 54. 327 ECtHR, Judgment of 12 February 2013, No. 58149/08, Amie and Others v. Bulgaria, para 77 and the case-law cited; see also ECtHR, Judgment of 26 July 2011, No. 41416/08, M. and Others v. Bulgaria, para 71. 328 ECtHR, Judgment of 25 January 2005, No. 60538/00, Singh c. Re ´publique Tche`que, para 62. 329 ECtHR, Admissibility decision of 14 June 2011, No. 12572/08, S.P. v. Belgium; ECtHR, Judgment of 14 November 2013, No. 29604/12, Kasymakhunov v. Russia, para 171. 330 ECtHR, Judgment of 17 January 2012, No. 22426/10, Keshmiri v. Turkey (No. 2), para 34. 331 ECtHR, Judgment of 27 September 2011, No. 39417/07, Alim v. Russia, para 60. 332 ECtHR, Judgment of 11 February 2010, No. 31465/08, Raza v. Bulgaria, para 74; ECtHR, Judgment of 15 November 1996, No. 22414/93, Chahal v. the United Kingdom, paras 115-17; ECtHR, Judgment of 14 December 2006, No. 72177/01, Bogdanovski v. Italy, paras 60–64. 325

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c) Impact of lodging an asylum application on the length of detention. In accordance with the ECJ judgments in Kadzoev and Arslan, when a TCN applies for asylum from pre-removal detention, the detention no longer falls under the scope of the Directive, but is regulated under the Asylum Reception Conditions Directive 2013/32/ EU and Asylum Procedures Directive 2013/32/EU.333 As a result, the period when asylum proceedings are pending should not be taken into account when calculating the maximum length of detention. However, if, despite the application for asylum, the TCN concerned is kept in detention based on the previous detention order and no decision on detention is taken in the context of the asylum proceedings, the period during which asylum proceedings are pending will have to be taken into account when calculating the period of pre-removal detention according to Article 15(5) and (6).334

6. Reasonable prospect of removal In accordance with Paragraph 4, the existence of a reasonable prospect of removal is one of the defining factors of the lawfulness of detention in addition to the necessity and proportionality criteria laid down in Paragraph 1. Whenever a reasonable prospect of removal ceases to exist or the detention preconditions under paragraph 1 are no longer fulfilled, Paragraph 4 requires that the person concerned be immediately released. 51 Since Paragraph 5 as well as the relevant Luxembourg case-law335 require that the removal be successful, the assessment whether there is a reasonable prospect of removal enters into play already at the stage of deciding on initial detention, although its embodiment in Paragraph 4 might leave the impression that this criterion is only relevant in the context of continuing detention. In fact, the wording ‘no longer exists’336 in Paragraph 4 can also be interpreted as referring to the necessity of considering a reasonable prospect of removal not only by continuing detention, but also from the outset when a detention decision is being taken. This line of reasoning corresponds to both the Strasbourg and the Luxembourg case-law. In a relatively recent judgment in the case of Amie and Others v. Bulgaria, the ECtHR has declared that ‘if the authorities are – as they surely must have been in the present case – aware of those difficulties, they should consider whether removal is a realistic prospect, and accordingly whether detention with a view to removal is from the outset,337 or continues to be, justified.’338 The same conclusion can be drawn from the following statement of the CJEU in Kadzoev: ‘It must (…) be apparent, at the time of the national court’s review of the lawfulness of detention339 that a real prospect exists that the removal can be carried out successfully’.340 52 Two key questions arise in the context of the assessment if there is a reasonable (realistic) prospect of removal: first, which factors have to be taken into account when 50

333 ECJ, Kadzoev, C-357/09 PPU, EU:C:2009:741, paras 41 et seq; ECJ, Arslan, C-534/11, EU:C:2013:343, paras 52 et seq. 334 ECJ, Kadzoev, C-357/09 PPU, EU:C:2009:741, para 47. 335 ECJ, Kadzoev, C-357/09 PPU, EU:C:2009:741, para 64. 336 Emphasis added. 337 Emphasis added. 338 ECtHR, Judgment of 12 February 2013, No. 58149/08, Amie and Others v. Bulgaria, para 77, also referring to Ali v. Switzerland, Appl. No. 24881/94, Commission’s report of 26 February 1997 (unpublished), § 41, and ECtHR, Judgment of 19 February 2009, No. 3455/05, A. and Others v. the United Kingdom [GC], para 167. 339 Emphasis added. 340 ECJ, Kadzoev, C-357/09 PPU, EU:C:2009:741, para 65; Return Handbook (p. 85) shares as well this interpretation. The German Residence Act, namely its § 62(2), provides a good example of covering this criterion by the initial necessity test. According to it, ‘detention pending deportation shall not be permissible if it is established that it will not be possible to carry out deportation within the next three months for reasons for which the foreigner is not responsible’.

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defining if such prospect exists, and second, what is the time-frame which has to be taken as an orientation for such assessment. a) Defining factors of a reasonable prospect of removal. The only indication which 53 is given in this respect in the Directive can be found in Paragraph 4, according to which the reasonable prospect of removal has to be assessed based on ‘legal or other considerations’. These considerations are largely related to all three actors (a returnee, a returning MS and a country of return) involved in the return process as well as to their corresponding conduct. Besides, their respective role in the prospect of removal might vary from case to case. Thus, although much will depend on the willingness of the country of potential return to cooperate and to deliver all necessary documents timely, if competent authorities of MS do not (or due to the lack of resources, cannot) pursue return procedures with due diligence or if the TCN concerned does not cooperate or otherwise frustrates the return procedures, the reasonable prospect of removal within fixed time-limits according to the Directive might be questionable. Therefore, the assessment of the conduct of everyone involved in the removal process is essential for the prognosis whether a TCN can be successfully removed and also for defining in which time-frame this might be done in the context of the proportionality of the length of detention. It should be noted, in this respect, that while the Strasbourg Court, when assessing the realistic prospect of removal, is mainly focused on due diligence of the expelling country, financial resources at its disposal341 and especially the conduct of a country of potential return, since the judgment in the case of Mikolenko342 the Court started attributing particular attention to the conduct of the TCN concerned as well. Thus, in Mikolenko343 and the subsequent case-law344, the Court made it clear that the conduct of the TCN concerned, and in particular, the unwillingness to cooperate when such cooperation is indispensable for the execution of expulsion (e. g. when a country of return requires it in order to issue relevant documentation), can have a direct impact on the realistic prospect of removal and has to be considered in the assessment process. Three other interesting aspects can be noted from the Strasbourg case-law concerning 54 a realistic prospect of removal. First, as indicated in Tabesh345, if the country of return does not confirm the nationality of the person concerned, the realistic prospect of removal ceases to exist. Second, as soon as the authorities realize that there is no realistic prospect of removal, they have to release the person concerned immediately and not keep him or her any longer in detention.346 Third, when national legislation provides for fixed time-limits of detention, the length of Strasbourg proceedings, in particular, when the Rule 39 is being applied, has to be considered in the assessment of the reasonable prospect of removal.347 With regard to the latter aspect, it should also be noted that in addition to the proceedings pending before the ECtHR, national appeals proceedings against removal, when such proceedings have a suspensory effect on removal, must also be considered in the context of reasonable prospect of removal within the time-limits fixed by national law. As regards the parallel appeals proceedings, the German case-law on this issue gives helpful indications for its proper application. In its landmark judgement from 27 February 2009, the Constitutional Court explicitly 341

See ECtHR, Judgment of 27 September 2011, No. 39417/07, Alim v. Russia, 60 et seq. ECtHR, Judgment of 8 October 2009, No. 10664/05, Mikolenko v. Estonia. 343 Ibid., para 64. 344 See e. g. ECtHR, Judgment of 9 April 2013, No. 27770/08, Abdi v. The United Kingdom, para 177. 345 ECtHR, Judgment of 26 November 2009, No. 8256/07, Tabesh v. Greece, para 62. 346 ECtHR, Judgment of 23 July 2013, No. 42337/12, Suso Musa v. Malta, para 104. 347 ECtHR, Judgment of 20 December 2011, No. 10486/10, Yoh-Ekale Mwanje v. Belgium, para 123. 342

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required that in order to guarantee an effective protection, the judge deciding on the detention application lodged by the Aliens Authority must take into account the length and possible outcome of administrative Court proceedings relating to the suspension of administrative decisions.348 The detention judges in Germany are thus required to inquire with their peers reviewing the expulsion decisions in the same case whether or not those proceedings are likely to exceed the time-limits foreseen for detention.349 55 The list of ‘legal or other considerations’ can also include the following cases: – an embassy in a given country refuses generally the cooperation in cases of forced return and accepts only voluntary returns;350 – return is impossible where there is no functioning airport in the country of return or there is no route of return;351 – the existence of a readmission agreement or the prospect of its immediate conclusion; – returnee is a stateless person and considering previous conduct of the country of return or the lack of readmission agreements, a general assumption is justified from the outset that the country of origin will refuse the admission;352 – return will be impossible because of the considerations in accordance with Article 5 (non-refoulement in broader sense covering all cases of Article 15 of the Asylum Qualification Directive 2011/95/EU, best interest of the child, family life, the state of health of the third country national concerned). b) Time-frame for the prognosis of a reasonable prospect of removal. As regards the question pertinent for the establishment of a reasonable prospect of removal, namely which time-frame has to be taken as an orientation for the relevant assessment, the CJEU judgement in case of Kadzoev entails the following general statement in this regard: ‘it must (…) be apparent (…) that a real prospect exists that the removal can be carried out successfully, having regard to the periods laid down in Article 15(5) and (6) of Directive 2008/115,353 for it to be possible to consider that there is a ‘reasonable prospect of removal’ within the meaning of Article 15(4) of that directive.’354 57 Having regard to the cited dictum using the wording ‘periods laid down in Article 15(5) and (6)’ and to the contextual interpretation of Article 15 taken as a whole as well as the blame attribution approach which characterizes this provision, it can be safely argued that when the success of removal procedures depends on due diligence of competent authorities, the maximum time threshold for prognosis of a reasonable prospect of removal cannot surpass 6 months, whereas when the success of removal is 56

348 Thym/Hailbronner, CONTENTION National Report Germany, available at: http://contention.eu/ docs/country-reports/GermanyFinal.pdf [last accessed 10 March 2015], Q32 with reference to the German Bundesverfassungsgericht (Federal Constitutional Court), BVerfG of 27.2.2009, 2 BvR 538/07. See also German Bundesgerichtshof (Federal Court of Justice), Decision of 25.2.2010, V ZB 172/09 according to which for the necessary forecast whether the removal may be carried out within three months, the Court must take into account the probable result of an application for suspension of the removal submitted by the third-country to the Administrative Court. 349 Cf. BVerfG, Neue Juristische Wochenschrift (2009), p. 2659, 2660 §. 23; German Bundesgerichtshof (Federal Court of Justice), Senat, Beschluss vom 25. Februar 2010 – V ZB 172/09, Neue Zeitschrift fu¨r Verwaltungsrecht 2010, 726, 728 § 24. 350 Vanderbruggen/Phelps/Sebtaoui/Kovats/Pollet, Point of No Return: the futile detention of unreturnable migrants, (2014), p. 23, available at: http://pointofnoreturn.eu/wp-content/uploads/2014/01/PONR_report.pdf [last accessed 10 March 2015]. 351 Ibid., p. 24. 352 Cf. EU Fundamental Rights Agency, Detention of third-country nationals in return procedures (2010), p. 26. 353 Emphasis added. 354 ECJ, Kadzoev, C-357/09 PPU, EU:C:2009:741, para 65.

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linked to the cooperation of a TCN (especially if he or she shows from the beginning the signs of an obstructive conduct) or the provision of documentation on the part of the country of return, the estimation can cover the entire period of 18 months. Article 15(4) read in conjunction with Article 15(6) suggests that only the latter two factors can justify taking the 18-month period as a maximum orientation, while other factors, such as a lack of resources, transport infrastructure, health conditions, pending appeal proceedings, etc., cannot validate the mentioned period as a benchmark for the prognosis and must be covered by an estimation extending only to a 6-month period. c) The Intensity of the assessment of a reasonable prospect of removal. As regards the 58 intensity of the assessment regarding the possibility of removal, the following statement of the Advocate General Maza´k in Kadzoev summarises the relevant standards to be applied in this regard: ‘as is clear from the wording of Article 15(4) of the Return Directive, the existence of an abstract or theoretical possibility of removal, without any clear information on its timetabling or probability, cannot suffice in that regard. There must be a ‘reasonable’, in other words realistic, prospect of being able to carry out the removal of the person detained within a reasonable period.’355 The ECJ shares this view in that it requires the existence of ‘a real prospect’ of removal.356 Thus, it can be safely assumed that clear information on timetabling or probability of the prospect of removal needs to be corroborated at least with the relevant statistics and previous experience in handling similar cases357 as is the case in Germany where the case-law of the high Courts has been rather strict with regard to the level of judicial examination of the factual assumption provided by the Aliens Authorities with regard to the existence of a prospect of removal.358 The Courts of appeal in Germany have frequently challenged a general assumption of a prospect of removal made by Aliens Authorities if the latter have not provided specific facts on the different steps to be taken in order to carry out a deportation order and the potential barriers to a removal.359 According to the case-law of the German Constitutional Court, the prognosis has to be made by the judge on the basis of a sufficiently complete factual basis.360 Similarly, the German Federal Court of Justice requires that the judicial decisions ordering or renewing detention must be corroborated with specific information about the course of procedures and the timeframe within which particular measures can be taken under normal circumstances.361

7. Maximum time-limits of detention and re-detention While Paragraph 5 sets a general upper time-limit of detention at maximum 6 59 months, Paragraph 6 provides the possibility of the extension of detention for a further 355

AG Maza`k, Kadzoev, C-357/09 PPU, ECLI:EU:C:2009:691 op. cit., § 35. ECJ, Kadzoev, C-357/09 PPU, EU:C:2009:741, para 65. 357 Cf. Drews/Fritsche, ‘Die aktuelle Rechtsprechung des BGH zur Sicherungshaft’, Neue Zeitschrift fu ¨r Verwaltungsreicht (2011), p. 531, referring to the relevant case-law of the German Federal Court of Justice. 358 Thym/Hailbronner, CONTENTION National Report Germany, available at: http://contention.eu/ docs/country-reports/GermanyFinal.pdf [last accessed 10 March 2015], Q35.1. 359 Ibid. 360 Thym/Hailbronner, CONTENTION National Report Germany, available at: http://contention.eu/ docs/country-reports/GermanyFinal.pdf [last accessed 10 March 2015], Q32 with reference to the German Bundesverfassungsgericht (Federal Constitutional Court), BVerfG of 27.2.2009, 2 BvR 538/07; Federal Constitutional Court, BVerfG of 15.12.2000, 2 BvR 347/00. 361 German Bundesgerichtshof (Federal Court of Justice), 27.10.2011, V ZB 311/10. See further details on the judicial application of the criterion of the reasonable prospect of removal in certain Member States: De Bruycker/Mananashvili, The Extent of Judicial Control of Pre-Removal Detention in the EU (2014), p. 6 et seq., available at: http://contention.eu/synthesis-reports/ [last accessed 10 March 2015]. 356

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12 months in two exceptional cases, namely when despite all the reasonable efforts of the Member State concerned, the removal operation is likely to last longer owing to: a) a lack of cooperation by the third-country national concerned, or b) delays in obtaining the necessary documentation from third countries. 60 According to the ECJ’s recent interpretation of Paragraph 6 in the case of Mahdi,362 when reviewing the extension of detention beyond the 6-month period, the detention judge must: – verify whether there is still a reasonable prospect of removal;363 – re-examine the substantive conditions of initial detention according to Article 15(1), i. e. that there is still a risk of absconding or that the TCN concerned is still avoiding or hampering the return procedures;364 – after an in-depth examination of the facts specific to each individual case, be able, where the detention is no longer justified in the light of Article 15(1) requirements, to substitute its own decision for that of the competent administrative or judicial authority and order either alternatives to detention or the release from the detention;365 – not limit him/herself to the matters adduced by the administrative authority concerned and consider any other elements that are relevant for its decision366 – not extend the detention if only the lack of identity documents is invoked as a ground for further detention as Article 15(6) limits the grounds for further detention to the two aforementioned substantial conditions and consider the lack of documents only as one (but not the only) of the factors indicating a risk of absconding according to Article 15(1);367 – establish a causal link between the conduct of the TCN concerned and the fact that the removal operation takes longer whereas if the removal operation lasts longer because of other reasons and there is no aforementioned causal link, it cannot be justified that there is a lack of cooperation in the sense of Article 15(6)(a);368 – establish that the removal operation is lasting longer than anticipated despite all reasonable efforts of the administration and that the latter has been actively seeking to secure the issue of identity documents for the TCN concerned.369 61 The last point corresponds to the Strasbourg case-law, according to which the lack of cooperation by the TCN concerned does not release competent authorities of the returning state from their obligation to pursue return proceedings with due diligence, and, if the latter is not the case, the competent authorities will not be able to rely on this criterion to justify continuing detention.370 62 As confirmed by the ECJ in the Kadzoev case, the 18-month time-limit is an absolute one, not allowing further detention of the TCN concerned under the Directive. Consequently, where that period has expired, the person concerned has to be released immediately and his further detention cannot be justified on the grounds that he is not in possession of valid documents, his conduct is aggressive, and he has no means of supporting himself and no accommodation or means supplied by the Member State for that purpose.371 362

ECJ, Mahdi, C-146/14 PPU, EU:C:2014:1320. Ibid., para 59. 364 Ibid., paras 61, 69. 365 Ibid., para 62. 366 Ibid., paras 62–64. 367 Ibid., paras 66–74. 368 Ibid., para 82. 369 Ibid., para 83. 370 ECtHR, Judgment of 12 March 2013, No 31206/05, Djalti c. Bulgarie, para 53. 371 See ECJ, Kadzoev, C-357/09 PPU, EU:C:2009:741, para 71. 363

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A re-detention of a TCN within the maximum time-limits if circumstances have 63 changed (e. g. if after the release due to the lack of a reasonable prospect of removal such a prospect emerges based on a new readmission agreement) does not contradict to the object and purpose of Article 15, while a re-detention after having spent 18 months continuously or cumulatively in detention is more problematic as it would go against the principle of proportionality stricto sensu, requiring that no excessive burden should be imposed by a measure interfering in a fundamental right. The rationale behind this argument is that the EU legislator seems to have practically resolved the operation of the principle of proportionality stricto sensu in respect to immigration detention by fixing two upper time-limits of detention. The German case-law provides an interesting example for the calculation of the 64 period of re-detention. If a new detention is part of the same removal proceedings as the previous one, the time spent in the previous detention is taken into account when calculating the maximum length of the new detention.372 Consequently, the deprivation of liberty is impossible after 18 months spent in detention, unless a new removal procedure is launched or there is a long time gap (of several years) between the two detention orders.

Article 16 Conditions of detention 1. Detention 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 third-country nationals in detention shall be kept separated from ordinary prisoners. 2. Third-country nationals in detention shall be allowed – on request – to establish in due time contact with legal representatives, family members and competent consular authorities. 3. Particular attention shall be paid to the situation of vulnerable persons. Emergency health care and essential treatment of illness shall be provided. 4. Relevant and competent national, international and non-governmental organisations and bodies shall have the possibility to visit detention facilities, as referred to in paragraph 1, to the extent that they are being used for detaining third-country nationals in accordance with this Chapter. Such visits may be subject to authorisation. 5. Third-country nationals kept in detention shall be systematically provided with information which explains the rules applied in the facility and sets out their rights and obligations. Such information shall include information on their entitlement under national law to contact the organisations and bodies referred to in paragraph 4. Content I. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 III. Conditions of detention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1. Detention in specialised facilities and separation from ordinary prisoners. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2. Explicit and implicit safeguards relating to the conditions of detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 372 Thym/Hailbronner, CONTENTION National Report Germany, available at: http://contention.eu/ docs/country-reports/GermanyFinal.pdf [last accessed 10 March 2015], Q80.

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I. General remarks Article 16, which needs to be read in the light of Recital 17, regulates the issue of the place and conditions of detention. In the ECtHR case-law this issue is directly linked to the lawfulness of detention. According to the Court, to avoid being branded as arbitrary, the place and conditions of detention should be appropriate, bearing in mind that the measure is applicable not to those who have committed criminal offences.373 Accordingly, there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention.374 The detention conditions can have direct impact on the lawfulness of the length of detention and when detention conditions are inappropriate, even three-month detention will be considered as too lengthy under Article 5(1)(f) ECHR.375 2 In the ECtHR case-law, conditions of detention can be assessed under two different Articles: Article 3 and Article 5(1)(f) ECHR. However, if the conditions of detention amount to inhuman and degrading treatment under Article 3 ECHR and the Court finds that the latter has been violated, it does not usually deem necessary to consider the same issue under Article 5(1)(f) ECHR. Under Article 3 ECHR, the Member States are under obligation to ensure: (i) that a TCN is detained in conditions which are compatible with respect for human dignity, (ii) that the manner and method of the execution of the measure do not subject the individual to distress or hardship of an intensity which exceeds the unavoidable level of suffering inherent in detention; and (iii) that, given the practical demands of imprisonment, the prisoner’s health and well-being are adequately secured.376 Decisive factors for the assessment whether the detention conditions are inappropriate and might amount to violation of Article 3 ECHR are the lack of personal space (overcrowding),377 access to outdoor exercise,378 natural light and fresh air (availability of ventilation),379 adequacy of heating arrangements, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements.380 The burden on the detention facilities as a result of the detention of high number of TCNs cannot absolve a Member State of its obligations under Article 3 due to the absolute character of that provision.381 1

II. Drafting history 3

The final version of Article 16 has preserved all the main elements which could be found in the initial Commission proposal except for the provision on minors and the 373

ECtHR, Judgment of 23 July 2013, No. 42337/12, Suso Musa v. Malta, para 93. ECtHR, Judgment of 19 January 2012, Nos. 39472/07 and 39474/07, Popov v. France, para 90. 375 Ibid. 376 ECtHR, Judgment of 23 July 2013, No. 55352/12, Aden Ahmed v. Malta, para 86; ECtHR, Judgment of 24 January 2008, Nos. 29787/03 and 29810/03, Riad and Idiab v. Belgium, para 99; ECtHR, Judgment of 11 June 2009, No. 53541/07, S.D. v. Greece, para 47; ECtHR, Judgment of 22 July 2010, No. 12186/08, A. A. v. Greece, para 55. 377 ECtHR, Judgment of 23 July 2013, No. 55352/12, Aden Ahmed v. Malta, para 87; ECtHR, Judgment of 7 April 2005, No. 53254/99, Karalevicˇius v. Lithuania, para 36; ECtHR, Judgment of 10 January 2012, Nos. 42525/07 and 60800/08, Ananyev and Others v. Russia, paras 143–148. 378 ECtHR, Judgment of 10 January 2012, Nos. 42525/07 and 60800/08, Ananyev and Others v. Russia, paras 150–152. 379 Ibid., paras 153–155. 380 ECtHR, Judgment of 23 July 2013, No. 55352/12, Aden Ahmed v. Malta, para 88. Ananyev 156–159 381 Cf. ECtHR, Judgment of 23 July 2013, No. 55352/12, Aden Ahmed v. Malta, para 90; ECtHR, Judgment of 21 January 2011, No. 30696/09, M.S.S. v. Belgium and Greece, para 223. 374

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reference to international and national standards (which was moved to the preamble and is now Recital 17).382 A new paragraph on providing information (now Paragraph 5) goes back to the initiative of the EP.383 The fact that the Commission’s initial proposal was not substantially changed can be explained by the fact that this provision was closely aligned with the CoE Twenty Guidelines on Forced Return, and therefore the attempts of the members of the Council to water down some of its provisions could not prevail due to the previous political commitment of its members to the said guidelines.384

III. Conditions of detention 1. Detention in specialised facilities and separation from ordinary prisoners According to Paragraph 1, the use of specialised facilities is the general rule due to the unsuitability of a prison facility for returnees who are neither convicted nor suspected of a criminal offence.385 The same is confirmed by Recital 17, which at the same time states that this general rule applies without prejudice to the initial apprehension by law-enforcement authorities. The obligation to detain illegally staying TCNs falling under the personal scope of the Directive in specialised detention facilities, and not in ordinary prisons is imposed upon the Member States as such, and not according to their respective administrative or constitutional structures.386 The national authorities must therefore be able to detain third-country nationals in specialised detention facilities.387 This implies a positive obligation of MS to make sure that sufficient places in detention facilities are available for a foreseeable number of irregular migrants who might be detained in the future.388 The derogation from the abovementioned general rule, foreseen in the second sentence of Paragraph 1 and allowing MS to place pre-removal detainees in exceptional cases in ordinary prisons, must be interpreted restrictively.389 The exception from the general rule may be applied when unforeseen peaks in the number of detainees caused by unpredictable quantitative fluctuations inherent to the phenomenon of irregular migration (not yet reaching the level of an ‘emergency situation’ expressly regulated in Article 18) cause a problem to place detainees in special facilities in a MS which otherwise disposes of an adequate/reasonable number of specialised facilities.390 The absence of special detention facilities in a federal part of a Member State whereas in another part of that MS such facilities dispose of available places cannot justify the placement of a returnee in an ordinary prison. The reference should be made here to the relevant statement of the ECJ in Bero-Bouzalmate, according to which: ‘Article 16(1) of Directive 2008/115 must be interpreted as requiring a Member State, as a rule, to detain illegally staying third-country nationals for the purpose of removal in a specialised detention facility of that State even if the Member State has a federal 382 See detailed changes undertaken during the trialogue negotiations in the Trialogue Table, in: Lutz, The Negotiations on the Return Directive, p. 353–357. 383 See European Parliament doc. A6-0339/2007 of 20.9.2007. 384 See Lutz, The Negotiations on the Return Directive, p. 69–70. 385 Achermann/Ku ¨ nzli/von Ru¨tte, European Immigration Detention Rules – A Feasibility Study (2013), p. 13–14, available at: http://www.coe.int/t/democracy/migration/Source/migration/EIDR-FeasibilityStudy-MC.pdf [last accessed 10 March 2015]. 386 ECJ, C-473/13, Bero and Bouzalmate, EU:C:2014:2095, para 28. 387 Ibid., para 29. 388 Commission Return Handbook, p. 90. 389 ECJ, C-473/13, Bero and Bouzalmate, EU:C:2014:2095, para 25, also with reference to ECJ, Kamberaj, C-571/10, EU:C:2012:233, para 86. 390 Commission Return Handbook, p. 90.

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structure and the federated state competent to decide upon and carry out such detention under national law does not have such a detention facility.’391 8 Paragraph 1 provides for an unconditional obligation requiring illegally staying third-country nationals to be kept separated from ordinary prisoners when in exceptional cases a Member State cannot place those TCNs in specialised detention facilities. This also applies to the TCNs who have previously served a prison sentence.392 Aggressive or inappropriate behaviour of returnees does not justify detaining these persons together with ordinary prisoners unless an act of aggression is qualified as crime and a related prison sentence was imposed by a Court.393 9 Agreement by a returnee to be detained together with prisoners does not absolve MS from the aforementioned obligation. According to the ECJ, the obligation requiring illegally staying TCNs to be kept separated from ordinary prisoners under Paragraph 1 is more than just a specific procedural rule for carrying out the detention of thirdcountry nationals in prison accommodation. It constitutes a substantive condition for that detention, without observance of which the latter would, in principle, not be consistent with the Directive. A Member State cannot take account of the wishes of the third-country national concerned.394

2. Explicit and implicit safeguards relating to the conditions of detention Article 16 provides itself for a few specific safeguards relating to the conditions of detention, namely: the obligation to allow detainees to establish contact with legal representatives, family members and competent consular authorities (Paragraph 2); to provide emergency health care and essential treatment of illness (Paragraph 3); to pay attention to the situation of vulnerable persons (Paragraph 3);395 to provide detainees with information which explains the rules applied in the facility and sets out their rights and obligations (Paragraph 5);396 and to provide relevant and competent national, international (such as IOM, UNHCR and International Red Cross) and non-governmental organisations and bodies the possibility to visit detention facilities (Paragraph 4).397 11 Despite the fact that Article 16 does not regulate other detention conditions, such as the size of rooms, access to sanitary facilities, access to open air, nutrition, etc. in accordance with Article 3 ECHR and Article 4 of the EU Charter read in conjunction with Recital 17, the Member States are obliged to observe not only the relevant Strasbourg case-law mentioned above (RN 2), but also the basic requirements reflected in the CoE Guideline on forced return No 10 (‘conditions of detention pending removal’); standards on immigration detention established by the CoE Committee on the Prevention of Torture (‘CPT standards’),398 devoted to the special needs and status of irregular migrants in detention; and the 2006 European Prison Rules399 as 10

391 ECJ, C-473/13, Bero and Bouzalmate, EU:C:2014:2095, para 33. For further issues see Commission Return Handbook, p. 90. 392 Commission Return Handbook, p. 91 393 Ibid. 394 ECJ, Pham, C-474/13, EU:C:2014:2096, paras 21–22. 395 See for definition of vulnerable persons Article 3(9). 396 The Commission Return Handbook (p. 91) recommends that this information be given as soon as possible and not later than 24 hours after arrival. 397 This right must be granted directly to the concerned bodies, independently of a concrete invitation from the detainee. See Commission Return Handbook, p. 91–92. 398 Doc. CPT/Inf/E (2002) 1 – Rev. 2013, available at: www.cpt.coe.int/en/docsstandards.htm [last accessed 10 March 2015]. See especially the standards No. 29, 79, 82, 90 and 91. 399 Recommendation Rec(2006)2 of the Committee of Ministers to Member States.

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basic minimum standards on all issues not addressed by the aforementioned standards.400

Article 17 Detention of minors and families 1. Unaccompanied minors and families with minors shall only be detained as a measure of last resort and for the shortest appropriate period of time. 2. Families detained pending removal shall be provided with separate accommodation guaranteeing adequate privacy. 3. Minors in detention shall have the possibility to engage in leisure activities, including play and recreational activities appropriate to their age, and shall have, depending on the length of their stay, access to education. 4. Unaccompanied minors shall as far as possible be provided with accommodation in institutions provided with personnel and facilities which take into account the needs of persons of their age. 5. The best interests of the child shall be a primary consideration in the context of the detention of minors pending removal. Content I. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Detention of minors and family . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3

I. General remarks Article 17 has to be interpreted with due regard to the relevant provisions of the 1 Convention of the Rights of the Child, Articles 7, 14, 24 CFR, Article 8 ECHR as well as in the light of the ECtHR’s case law on Article 5 ECHR. The latter provides some specific indications in this regard. For instance, in Muskhadzhivyeva and Others, the Court found the violation of that provision as despite the fact that children were accompanied by their parents, and even though the detention centre had a special wing for the accommodation of families, the children’s particular situation was not examined and the authorities did not verify that the placement in administrative detention was a measure of last resort for which no alternative was available.401 In another judgement (Popov v. France), the Court deplored the legal vacuum in France, under which children ‘accompanying’ their parents were detained together with the latter despite the fact that there was no specific provision in the French legislation authorising children detention. This prevented the detained children from using any remedies available to their parents.402 On another occasion, the Court also considered that detention of an unaccompanied minor in a closed centre intended for irregular immigrants in the same conditions as adults amounted to the violation of Article 5 ECHR.403 400 See Commission Return Handbook, p. 93 et seq. For further international standards see Achermann/Ku¨nzli/von Ru¨tte, European Immigration Detention Rules – A Feasibility Study (2013), p. 13 et seq., available at: http://www.coe.int/t/democracy/migration/Source/migration/EIDR-Feasibility-Study-MC.pdf [last accessed 10 March 2015]. 401 ECtHR, Judgment of 19 January 2010, No. 41442/07, Muskhadzhiyeva and Others v. Belgium. 402 ECtHR, Judgment of 19 January 2012, Nos. 39472/07 and 39474/07, Popov v. France, para 96. 403 ECtHR, Judgment of 12 October 2006, No. 13178/03, Mubilanzila Mayeka and Kaniki Mitunga, para 103.

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II. Drafting history 2

In the initial Commission proposal, the issue of detention of minors was covered in the same Article as detention conditions. According to draft Article 15(3) which corresponds to the current Article 16(3), Member States had to ensure that minors in general were not kept in detention in common prison accommodation, and that, unaccompanied minors were separated from adults unless it was considered in the child’s best interest not to do so.404 The fact that this issue is now regulated in a separate, more elaborate provision goes back to the initiative of the European Parliament and its rapporteur who formulated the proposed amendment in almost the same terms as the Guideline No. 11 from the CoE Twenty Guidelines on Forced Return.405 During the trilogue negotiations, the proposed amendment was subject to only slight changes, thus keeping its core content.406 This can be explained by the fact that the Council could not oppose itself to what its members had previously agreed on in the framework of the Council of Europe and also because this provision was considered as a trade-off for obtaining the necessary EP support for the entire Directive.407

III. Detention of minors and family Paragraph 1, corresponding to CoE Guidline No. 11(1), provides for a clear obligation for the Member States that minors whether unaccompanied or accompanied by their families can only be detained as a measure of last resort and for the shortest appropriate period of time. This obligation which is congruent with the text of Article 37(b) of the Convention on the Rights of the Child, under which detention of a child ‘shall be used only as a measure of last resort and for the shortest appropriate period of time’, is another confirmation of the principle of proportionality reflected in Article 15. However, since according to Paragraph 5 Member States are obliged to pay a primary consideration to the best interest of the child, the standard of proportionality is much higher in the context of a pre-removal detention where a child is involved than in other cases. Therefore, it is not surprising that certain EU Member States neither detain unaccompanied minors nor families with children.408 4 Paragraph 1, interpreted in conjunction with Article 15(1) and the above mentioned Strasbourg case-law, suggests that when Member States consider the application of Article 15 to families with minors, they are under obligation to conduct double proportionality test, one in relation to the TCN concerned and another one in respect to his or her child (or children). 5 As regards the definitions of ‘minor’ and ‘unaccompanied minor’, while the Directive does not provide any specific definitions in this respect, the common understanding of the Member States on this issues can be found in Article 2(d) and (e) of the Asylum Reception Conditions Directive 2013/32/EU (cf. above Article 10 MN 5). 6 Paragraph 2 largely corresponds to the CoE Guideline No. 11(2) which as the commentary to the latter suggests is a result of the application of Article 8 ECHR in the context of detention. However, it should be noted that while the Guideline No. 11(2) 3

404

Commission Proposal, COM(2005) 391, p. 19. European Parliament doc. A6-0339/2007 of 20.9.2007. 406 See the Trilogue Table in Lutz, The Negotiations on the Return Directive, p. 358–359. 407 See Lutz, The Negotiations on the Return Directive, p. 70. 408 See Matrix, Evaluation on the application of the Return Directive, 2013, p. 60. 405

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uses the term ‘should’, thus implying that it is a mere recommendation, Article 17(2) is far more demanding, not leaving any margin of discretion to the Member States. Paragraphs 3 to 5 are again congruent with Paragraphs 3 to 5 of the CoE Guidline 7 11. The commentary to the latter suggests that they were not only inspired by the relevant provisions of the Convention on the Rights of the Child (in particular Articles 37(b), 20(1) and 3(1) of the Convention), but also by the UN Rules for the protection of juveniles deprived of their liberty,409 providing specific rules with regard to the exercise of the right to education of detained children.410 It should be mentioned here that the CPT411 standards related to detention of minors provide further interpretative guidance for the proper application of Article 17.412 Finally, it should be stressed that Paragraph 5 needs to be observed not only before taking a detention decision but also throughout the entire period of detention.

Article 18 Emergency situations 1. In situations where an exceptionally large number of third-country nationals to be returned places an unforeseen heavy burden on the capacity of the detention facilities of a Member State or on its administrative or judicial staff, such a Member State may, as long as the exceptional situation persists, decide to allow for periods for judicial review longer than those provided for under the third subparagraph of Article 15(2) and to take urgent measures in respect of the conditions of detention derogating from those set out in Articles 16(1) and 17(2). 2. When resorting to such exceptional measures, the Member State concerned shall inform the Commission. It shall also inform the Commission as soon as the reasons for applying these exceptional measures have ceased to exist. 3. Nothing in this Article shall be interpreted as allowing Member States to derogate from their general obligation to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under this Directive. This provision, which has been inserted during the trilogue negotiations in order to 1 meet the concerns of some of the Member States,413 provides for a possibility for MS not to apply three detention-related provisions of the Directive (namely: the obligation to provide for a speedy initial judicial review of detention; the obligation to detain only in specialised facilities; and the obligation to provide separate accommodation guaranteeing adequate privacy to families) in emergency situations involving the sudden arrival of large numbers of irregular migrants. Derogations to other rules contained in the Directive are not possible.414 409

Adopted by General Assembly Resolution 45/113 of 14 December 1990. According to Paragraph 38: ‘Every juvenile of compulsory school age has the right to education suited to his or her needs and abilities and designed to prepare him or her for return to society. Such education should be provided outside the detention facility in community schools wherever possible and, in any case, by qualified teachers through programmes integrated with the education system of the country so that, after release, juveniles may continue their education without difficulty. Special attention should be given by the administration of the detention facilities to the education of juveniles of foreign origin or with particular cultural or ethnic needs. Juveniles who are illiterate or have cognitive or learning difficulties should have the right to special education’. 411 CoE Committee on the Prevention of Torture. 412 See paras 97–100 of the CPT standards. 413 See Lutz, The Negotiations on the Return Directive, p. 70–71. 414 See Draft Commission Return Handbook, p. 78. 410

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Transposition into national law is a precondition for a possible application of the emergency clause.415 Article 18 describes and limits the situations covered, as well as the scope of possible derogations and information obligations to the Commission. If a MS wishes to have the option to apply this safeguard clause in case of emergency situations, it must have properly transposed it beforehand – as a possibility and in line with the criteria of Article 18 – into its national legislation. Contrary to safeguard clauses contained in Regulations (e. g. those in the Schengen Borders Code Regulation (EC) No 562/2006 related to the reintroduction of internal border control), safeguard clauses in Directives must be transposed into national law before they can be used.416 3 Information concerning a possible use of the emergency clause should be passed by MS to the Commission by means of the usual official channels, i. e. via the Permanent Representation to the Secretariat General of the European Commission.417 2

CHAPTER V FINAL PROVISIONS Article 19 Reporting The Commission shall report every three years to the European Parliament and the Council on the application of this Directive in the Member States and, if appropriate, propose amendments. The Commission shall report for the first time by 24 December 2013 and focus on that occasion in particular on the application of Article 11, Article 13(4) and Article 15 in Member States. In relation to Article 13(4) the Commission shall assess in particular the additional financial and administrative impact in Member States. 1

The Commission published its first application report on 28 March 2014 (see above Article 1 MN 21). It did not propose any amendments, preferring instead to focus on the proper implementation of the provisions of the Directive. The next report is due in late 2016/beginning of 2017.418

Article 20 Transposition 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 24 December 2010. In relation to Article 13(4), Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 24 December 2011. They shall forthwith communicate to the Commission the text of those measures. 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. 415 On the current status of transposition and the application of this Article by Italy see Matrix, Evaluation on the application of the Return Directive, 2013, p. 63 et seq. 416 Draft Commission Return Handbook, p. 78. 417 Ibid. 418 Further details on this provision see in Schieffer, in Hailbronner (ed), EU Immigration and Asylum Law, p. 1549–1550.

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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 21 Relationship with the Schengen Convention This Directive replaces the provisions of Articles 23 and 24 of the Convention implementing the Schengen Agreement.

Article 22 Entry into force This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 23 Addressees This Directive is addressed to the Member States in accordance with the Treaty establishing the European Community. Articles 20–23 are standard final provisions which are self-explanatory.419 The Direc- 1 tive entered into force on 13 January 2009. 419

See for further details Schieffer, in Hailbronner (ed), EU Immigration and Asylum Law, p. 1550–

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VIII. 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 Official Journal L 155, 18/06/2009, pp. 17–29 Selected Bibliography: Carlitz/Schmidt, ‘Arbeitsmarktzugang von Familienangeho¨rigen in den neuen Migrationsrichtlinien – Akzessorieta¨tsgrundsatz als Stolperstein?’, Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik (2010), pp. 309–316; Eichenhofer, ‘Bewertung der Kommissionsvorschla¨ge zur Arbeitsmigration: Europa- und sozialrechtliche Rahmenbedingungen und historische Erfahrungen’, Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik (2009), pp. 81–86; Guild, ‘EU Policy on Labour Migration: A First Look at the Commission’s Blue Card Initiative’, Centre for European Policy Studies 145 (2007), pp. 1–7; Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-Card-Richtlinie 2009/50/EG und ihre Umsetzung in Deutschland (Nomos 2014); Kuczynski/Solka, ‘Die Hochqualifiziertenrichtlinie’, Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik (2009), pp. 219–229; Martı´n Asensio, ‘Die “Blue Card”Richtlinie – eine Maßnahme der politischen Inkoha¨renz der EU im Interesse der Erreichung ihrer Ziele im Rahmen der EU-Entwicklungspolitik’, Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik (2010), pp. 175–183; Peers, ‘Legislative Update: EC Immigration and Asylum Law Attracting and Deterring Labour Migration: The Blue Card and Employer Sanction Directives’, EJML 11 (2009), pp. 387–426.

THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular points (3)(a) and (4) of the first subparagraph of Article 63 thereof, Having regard to the proposal from the Commission, Having regard to the opinion of the European Parliament(1), After consulting the European Economic and Social Committee(2), After consulting the Committee of the Regions(3), Whereas: (1) For the gradual establishment of an area of freedom, security and justice, the Treaty provides for measures to be adopted in the fields of asylum, immigration and protection of the rights of third-country nationals. (2) The Treaty provides that the Council is to adopt measures on immigration policy relating to conditions of entry and residence, standards on procedures for the issue by Member States of long-term visas and residence permits, and measures defining the rights and conditions under which nationals of third-countries who are legally resident in a Member State may reside in other Member States. (3) The Lisbon European Council in March 2000 set the Community the objective of becoming the most competitive and dynamic knowledge-based economy in the world, capable of sustainable economic growth with more and better jobs and greater social cohesion by 2010. Measures to attract and retain highly qualified third-country workers as part of an approach based on the needs of Member States should be seen in the broader context established by the Lisbon Strategy and by the Commission Communication of 11 December 2007 on the integrated guidelines for growth and jobs. (4) The Hague Programme, adopted by the European Council on 4 and 5 November 2004, recognised that legal migration will play an important role in enhancing the (1)

Opinion of 20 November 2008 (not yet published in the Official Journal). Opinion of 9 July 2008 (not yet published in the Official Journal). (3) Opinion of 18 June 2008 (not yet published in the Official Journal). (2)

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knowledge-based economy in Europe, advancing economic development, and thus contributing to the implementation of the Lisbon Strategy. The European Council invited the Commission to present a policy plan on legal migration, including admission procedures, capable of responding promptly to fluctuating demands for migrant labour in the labour market. (5) The European Council of 14 and 15 December 2006 agreed on a series of steps for 2007, among which to develop well-managed legal immigration policies, fully respecting national competences, to assist Member States in meeting existing and future labour needs. (6) To achieve the objectives of the Lisbon Strategy it is also important to foster the mobility within the Union of highly qualified workers who are Union citizens, in particular those from the Member States which acceded in 2004 and 2007. In implementing this Directive, Member States are bound to respect the principle of Community preference as expressed, in particular, in the relevant provisions of the Acts of Accession of 2003 and 2005. (7) This Directive is intended to contribute to achieving these goals and addressing labour shortages by fostering the admission and mobility – for the purposes of highly qualified employment – of third-country nationals for stays of more than three months, in order to make the Community more attractive to such workers from around the world and sustain its competitiveness and economic growth. To reach these goals, it is necessary to facilitate the admission of highly qualified workers and their families by establishing a fast-track admission procedure and by granting them equal social and economic rights as nationals of the host Member State in a number of areas. It is also necessary to take into account the priorities, labour market needs and reception capacities of the Member States. This Directive should be without prejudice to the competence of the Member States to maintain or to introduce new national residence permits for any purpose of employment. The third-country nationals concerned should have the possibility to apply for an EU Blue Card or for a national residence permit. Moreover, this Directive should not affect the possibility for an EU Blue Card holder to enjoy additional rights and benefits which may be provided by national law, and which are compatible with this Directive. (8) This Directive should be without prejudice to the right of the Member States to determine the volumes of admission of third-country nationals entering their territory for the purposes of highly qualified employment. This should include also third-country nationals who seek to remain on the territory of a Member State in order to exercise a paid economic activity and who are legally resident in that Member State under other schemes, such as students having just completed their studies or researchers having been admitted pursuant to 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(4) and Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research(5) respectively, and who do not enjoy consolidated access to the labour market of the Member State under Community or national law. Moreover, regarding volumes of admission, Member States retain the possibility not to grant residence permits for employment in general or for certain professions, economic sectors or regions. (4) (5)

OJ L 375, 23.12.2004, p. 12. OJ L 289, 3.11.2005, p. 15.

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(9) For the purpose of this Directive, in order to evaluate if the third-country national concerned possesses higher education qualifications, reference may be made to ISCED (International Standard Classification of Education) 1997 levels 5a and 6. (10) This Directive should provide for a flexible demand-driven entry system, based on objective criteria, such as a minimum salary threshold comparable with the salary levels in the Member States, and on professional qualifications. The definition of a common minimum denominator for the salary threshold is necessary to ensure a minimum level of harmonisation in the admission conditions throughout the Community. The salary threshold determines a minimum level while Member States may define a higher salary threshold. Member States should fix their threshold in accordance with the situation and organisation of their respective labour markets and their general immigration policies. Derogation from the main scheme in terms of the salary threshold may be laid down for specific professions where it is considered by the Member State concerned that there is a particular lack of available workforce and where such professions are part of the major group 1 and 2 of the ISCO (International Standard Classification of Occupation) classification. (11) This Directive aims only at defining the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment within the EU Blue Card system, including the eligibility criteria related to a salary threshold. The sole purpose of this salary threshold is to help to determine, taking into account a statistical observation published by the Commission (Eurostat) or by the Member States concerned, the scope of the EU Blue Card established by each Member State on the basis of common rules. It does not aim to determine salaries and therefore does not derogate from the rules or practices at Member State level or from collective agreements, and cannot be used to constitute any harmonisation in this field. This Directive fully respects the competences of Member States, particularly on employment, labour and social matters. (12) Once a Member State has decided to admit a third-country national fulfilling the relevant criteria, the third-country national who applied for an EU Blue Card should receive the specific residence permit provided for by this Directive, which should grant progressive access to the labour market and residence and mobility rights to him and his family. The deadline for examining the application for an EU Blue Card should not include the time required for the recognition of professional qualifications or the time required for issuing a visa, if required. This Directive is without prejudice to national procedures on the recognition of diplomas. The designation of the competent authorities under this Directive is without prejudice to the role and responsibilities of other national authorities and, where applicable, the social partners, with regard to the examination of, and the decision on, the application. (13) The format of the EU Blue Card should be in accordance with Council Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uniform format for residence permits for third-country nationals(6), thus enabling the Member States to refer to the information, in particular, under which conditions the person is permitted to work. (14) Third-country nationals who are in possession of a valid travel document and an EU Blue Card issued by a Member State applying the Schengen acquis in full, should be allowed to enter into and move freely within the territory of another Member State applying the Schengen acquis in full, for a period of up to three months, in accordance with Regulation (EC) No 562/2006 of the European Parliament and of (6)

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the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)(7) and Article 21 of the 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. (15) The occupational and geographical mobility of third-country highly qualified workers should be recognised as a primary mechanism for improving labour market efficiency, preventing skill shortages and offsetting regional imbalances. In order to respect the principle of Community preference and to avoid possible abuses of the system, the occupational mobility of a third-country highly qualified worker should be limited for the first two years of legal employment in a Member State. (16) This Directive fully respects equal treatment between nationals of the Member States and EU Blue Card holders in relation to pay, when they are in comparable situations. (17) Equal treatment of EU Blue Card holders does not cover measures in the field of vocational training which are covered under social assistance schemes. (18) EU Blue Card holders should enjoy equal treatment as regards social security. Branches of social security are defined in Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community(8). Council Regulation (EC) No 859/2003 of 14 May 2003 extending the provisions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to nationals of third-countries who are not already covered by those provisions solely on the ground of their nationality(9) extends the provisions of Regulation (EEC) No 1408/71 to third-country nationals who are legally residing in the Community and who are in a cross-border situation. The provisions on equal treatment as regards social security in this Directive also apply directly to persons entering into the territory of a Member State directly from a third-country, provided that the person concerned is legally residing as holder of a valid EU Blue Card, including during the period of temporary unemployment, and he fulfils the conditions, set out under national law, for being eligible for the social security benefits concerned. Nevertheless, this Directive should not confer to the EU Blue Card holder more rights than those already provided in existing Community law in the field of social security for third-country nationals who have cross-border elements between Member States. This Directive, furthermore, should not grant rights in relation to situations which lie outside the scope of Community law such as, for example, the situation of family members residing in a third country. (19) Professional qualifications acquired by a third-country national in another Member State should be recognised in the same way as those of Union citizens. Qualifications acquired in a third country should be taken into account in conformity with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications(10). (20) The geographical mobility within the Community should be controlled and demand-driven during the first period of legal stay of the highly qualified thirdcountry worker. Derogations from Council Directive 2003/109/EC of 25 November (7)

OJ L 105, 13.4.2006, p. 1. OJ L 149, 5.7.1971, p. 2. (9) OJ L 124, 20.5.2003, p. 1. (10) OJ L 255, 30.9.2005, p. 22. (8)

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2003 concerning the status of third-country nationals who are long-term residents(11) should be provided for in order not to penalise geographically mobile highly qualified third-country workers who have not yet acquired the EC long-term resident status referred to in that Directive, and in order to encourage geographical and circular migration. (21) The mobility of highly qualified third-country workers between the Community and their countries of origin should be fostered and sustained. Derogations from Directive 2003/109/EC should be provided for in order to extend the period of absence from the territory of the Community without interrupting the period of legal and continuous residence necessary to be eligible for EC long-term resident status. Longer periods of absence than those provided for in Directive 2003/109/EC should also be allowed after highly qualified third-country workers have acquired EC long-term resident status to encourage their circular migration. (22) In implementing this Directive, Member States should refrain from pursuing active recruitment in developing countries in sectors suffering from a lack of personnel. Ethical recruitment policies and principles applicable to public and private sector employers should be developed in key sectors, for example the health sector, as underlined in the Council and Member States’ conclusions of 14 May 2007 on the European Programme for Action to tackle the critical shortage of health workers in developing countries (2007 to 2013) and the education sector, as appropriate. These should be strengthened by the development and application of mechanisms, guidelines and other tools to facilitate, as appropriate, circular and temporary migration, as well as other measures that would minimise negative and maximise positive impacts of highly skilled immigration on developing countries in order to turn ‘brain drain’ into ‘brain gain’. (23) Favourable conditions for family reunification and for access to work for spouses should be a fundamental element of this Directive which aims to attract highly qualified third-country workers. Specific derogations to Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification(12) should be provided for in order to reach this aim. The derogation included in Article 15(3) of this Directive does not preclude Member States from maintaining or introducing integration conditions and measures, including language learning, for the members of the family of an EU Blue Card holder. (24) Specific reporting provisions should be provided for to monitor the implementation of this Directive, with a view to identifying and possibly counteracting its possible impacts in terms of ‘brain drain’ in developing countries and in order to avoid ‘brain waste’. The relevant data should be transmitted annually by the Member States to the Commission 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 protection(13). (25) Since the objectives of this Directive, namely the introduction of a special admission procedure and the adoption of conditions of entry and residence for more than three months applicable to third-country nationals in the Member States for the purposes of highly qualified employment and their family members, cannot be sufficiently achieved by the Member States, especially as regards ensuring their mobility between Member States, and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of (11)

OJ L 16, 23.1.2004, p. 44. OJ L 251, 3.10.2003, p. 12. (13) OJ L 199, 31.7.2007, p. 23. (12)

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subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives. (26) This Directive respects the fundamental rights and observes the principles recognised in particular in Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union. (27) In accordance with paragraph 34 of the Interinstitutional agreement of the European Parliament, the Council and the Commission on better law-making(14), Member States are encouraged to draw up, for themselves and in the interest of the Community, their own tables, which will, as far as possible, illustrate the correlation between the Directive and the transposition measures, and make them public. (28) In accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community and without prejudice to Article 4 of the said Protocol these Member States are not taking part in the adoption of this Directive and are not bound by or subject to its application. (29) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community, Denmark is not participating in the adoption of this Directive, and is not bound by it or subject to its application, HAS ADOPTED THIS DIRECTIVE:

CHAPTER I GENERAL PROVISIONS Article 1 Subject matter The purpose of this Directive is to determine: (a) the conditions of entry and residence for more than three months in the territory of the Member States of third-country nationals for the purpose of highly qualified employment as EU Blue Card holders, and of their family members; (b) the conditions for entry and residence of third-country nationals and of their family members under point (a) in Member States other than the first Member State.

General remarks and structure of the Directive The Council Directive 2009/50/EC on the conditions of entry and residence of third- 1 country nationals for the purposes of highly qualified employment1 (the Directive) is designed to regulate the conditions of entry and residence of third-country nationals who will take up highly qualified employment. It also sets out the conditions under which third-country nationals who are in possession of a Blue Card and their family members may reside in a second Member State. The Directive was adopted by the European Council by unanimity on 25 May, 2009. 2 The Directive is based on Article 63(1) No. 3 (a) and No. 4 TEC (now Article 79(2)(a), (14)

OJ C 321, 31.12.2003, p. 1. See Blue Card Directive 2009/50/EC. Cf. 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 L 155/17 (2009). 1

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(b) TFEU. The Proposal for the Directive is the result from a long-term process within the EU’s self-proclaimed objectives to establish a comprehensive immigration policy.2 In order to make the EU more attractive to highly qualified workers from around the world and to sustain its competitiveness and economic growth, it was considered necessary to foster the admission and mobility of highly qualified third-country nationals.3 The 27 different admission systems and the obstacles for those who intend to move to a second Member State for highly qualified employment were mentioned as barriers.4 It was, therefore, perceived as necessary to establish a fast-track admission procedure based on common criteria. Also, Blue Card holders should be granted a series of rights, such as special equal social rights with nationals, attractive residence conditions for themselves and their family members and the facilitated ability to move from one Member State to a second for highly qualified employment.5

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) ‘highly qualified employment’ means the employment of a person who: – in the Member State concerned, is protected as an employee under national employment law and/or in accordance with national practice, irrespective of the legal relationship, for the purpose of exercising genuine and effective work for, or under the direction of, someone else, – is paid, and, – has the required adequate and specific competence, as proven by higher professional qualifications, (c) ‘EU Blue Card’ means the authorisation bearing the term ‘EU Blue Card’ entitling its holder to reside and work in the territory of a Member State under the terms of this Directive; (d) ‘first Member State’ means the Member State which first grants a third-country national an ‘EU Blue Card’; (e) ‘second Member State’ means any Member State other than the first Member State; (f) ‘family members’ means third-country nationals as defined in Article 4(1) of Directive 2003/86/EC; (g) ‘higher professional qualifications’ means qualifications attested by evidence of higher education qualifications or, by way of derogation, when provided for by national law, attested by at least five years of professional experience of a level comparable to higher education qualifications and which is relevant in the profession or sector specified in the work contract or binding job offer; (h) ‘higher education qualification’ means any diploma, certificate or other evidence of formal qualifications issued by a competent authority attesting the successful 2 See Commission Proposal, COM(2007) 637 final, p. 2, see also recital 3 of the preamble of the Directive. 3 See recital 7 of the preamble of the Directive. 4 See Commission Proposal, COM(2007) 637 final, p. 3. 5 Commission Proposal, COM(2007) 637 final, p. 6. For the drafting history, see also Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-Card-Richtlinie 2009/50/EG und ihre Umsetzung in Deutschland, (Nomos 2014), p. 27–40.

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completion of a post-secondary higher education programme, namely a set of courses provided by an educational establishment recognised as a higher education institution by the State in which it is situated. For the purposes of this Directive, a higher education qualification shall be taken into account, on condition that the studies needed to acquire it lasted at least three years; (i) ‘professional experience’ means the actual and lawful pursuit of the profession concerned; (j) ‘regulated profession’ means a regulated profession as defined in Article 3(1)(a) of Directive 2005/36/EC. Content I. II. III. IV. V. VI. VII. VIII. IX. X. XI.

Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Third-country national (Article 2(a)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Highly qualified employment (Article 2(b)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . EU Blue Card (Article 2(c)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . First Member State (Article 2(d)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Second Member State (Article 2(e)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Family Member (Article 2(f)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Higher professional qualifications (Article 2(g)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Higher education qualification (Article 2(h)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Professional experience (Article 2(i)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Regulated profession (Article 2(j)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 8 9 10 11 12 13 14 15

I. Definitions This article is a key provision as it provides definitions of the ten most important 1 terms used in the Directive. Article 2 provides an understanding and interpretation of the provisions to be applied uniformly in the Member States.

II. Third-country national (Article 2(a)) The term third-country national in Article 2(a) defines a third country national as 2 any person who is not a citizen of the Union. Article 2(a) relates to the former Article 17(1) of the ECT (now Article 20 TFEU), which stipulates that every person holding the nationality of a Member State shall be a citizen of the Union. Dual nationals, holding the nationality of an EU-Member State as well as one or more nationalities of third countries do not fall within the scope of application of the Directive. A stateless person is by definition considered as a third-country national.

III. Highly qualified employment (Article 2(b)) The term ‘highly qualified employment’ (Article 2(b)) is one of the key definitions of 3 the Directive; it is based on three elements.6 The first element is the requirement that the person be ‘protected as an employee under national employment law and/or in accordance with national practice, irrespective of the legal relationship, for the purpose of exercising genuine and effective work for, or under the direction of, someone else’. The term ‘employee’ is to be defined according to national law. A reference to the term ‘employment’ as defined in Article 2(1)(c) of the Employers Sanctions Directive 2009/52/ 6 In the Commission’s Proposal the term was based only on two elements, see Commission Proposal, COM(2007) 637 final, p. 9.

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EC was explicitly excluded.7 The drafting history shows as well that the term ‘employee’ is not identical with the term ‘worker’ used in Article 45 TFEU (ex. Article 39 TEC).8 Even though the German wording indicates an identical meaning by the use of the same term ‘Arbeitnehmer’ in Article 2(b) and in Article 45 TFEU (ex. Article 39 TEC) the drafting history shows that an explicit reference to national law was included in the text to maintain a national prerogative to define the term ‘employment’ for the purposes of the Directive. The reference to national law/or practice was only introduced during Council negotiations. The Commission’s Proposal did not contain such a reference and was therefore much closer to the definition of the term ‘worker’ as defined within Article 45 TFEU (ex. Article 39 TEC).9 The change of the wording during the Council negotiations manifests the intention of the Member States to define the term ‘employee’ autonomously from the term ‘worker’ in Article 45 TFEU (ex. Article 39 TEC). National courts and authorities are therefore not obliged to define the term ‘employee’ identically.10 Consequently, groups such as trainees and interns11 may also fall into the scope of the Directive, as far as they are protected as employees under their respective national laws/or in accordance with national practices, and as far as they fulfil all additional criteria, including the salary criterion. In spite of these differences, there are also similarities with the definition of ‘worker’ in Article 45 TFEU (ex. Article 39 ECT). Major criteria, like the remuneration criteria, are identical. Differences exist with respect to the fixed salary criterion12 and the requested time period.13 Furthermore, the protection of the Directive may be withdrawn when the Blue Card holder applies for social assistance.14 4 Cross border workers, who work and live in two different Member States, do not fall into the scope of the Directive. This follows from the purpose of the Directive: to provide a ‘one-stop-shop’ system for granting third-country nationals a residence permit and a work permit in a single act. The problem of cross border workers was discussed in the Council. An inclusion of cross-border workers was, however, rejected.15 5 In order to fulfil the criteria of an employee the work to be performed must be ‘genuine and effective’. While Article 45 TFEU (ex. Article 39 ECT) is not directly applicable to third-country nationals, the term ‘genuine and effective’ is to be inter7

See Council doc. 12320/08 of 1 August 2008, p. 3. According to the ECJ workers are natural persons engaged in an employment relationship. The worker performs services for and under the direction of another person in return for remuneration for a certain time, see also in particular, ECJ, Lawrie-Blum, C-66/85, EU:C:1986:284, paras. 16 and 17. 9 See Article 2(b) of the Commission’s Proposal, COM(2007) 637 final, p. 19; see also Guild, ‘EU Policy on Labour Migration: A First Look at the Commission’s Blue Card Initiative’, Centre for European Policy Studies 145 (2007), p. 3. 10 As regards EU citizens, the term of employee or worker according to Article 45 TFEU may not be interpreted differently according to the law of each Member State but has EU uniform meaning, see in particular, ECJ, Unger, C-75/63, ECLI:EU:C:1964:19, para. 1; ECJ, Raulin, C-357/89, ECLI:EU:C:1992:87, para. 10; ECJ, Lawrie-Blum, C-66/85, EU:C:1986:284, paras. 16 and 17. 11 It is doubtful whether the category of ‘arbeitnehmera ¨hnliche Personen’ is covered by the Directive. ‘Arbeitnehmera¨hnliche Personen’ are in German labour law defined as workers who are partly protected as employees but who are also exercising a self-employed activity. Because important provisions of employment law in Germany are applicable to this group, there are valid arguments that these persons may also fall into the scope of the Directive. 12 According to the ECJ the worker has to receive remuneration. This does not request a certain salary, see in particular, ECJ, Lawrie-Blum, C-66/85, EU:C:1986:284, paras. 16 and 17; ECJ, Collins, C-138/02, ECLI:EU:C:2004:172, para. 26. 13 Article 5(1)(a) requires a valid work contract or a binding job offer of at least one year. 14 See Article 9(3)(d), contrary to EU citizens who do not lose their status as a ‘worker’, see in particular ECJ, Kempf, C-139/85, ECLI:EU:C:1986:223, paras. 9, 14 and 16. 15 See Council doc. 13009/08 of 15 September 2008, p. 3, in which Netherlands suggested the inclusion of a specific provision for cross-border workers. See also Council doc. 12320/08 of 1 August 2008, p. 24. 8

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preted in line with the established definition of ‘worker’ in the sense of Article 45 TFEU as the drafting history indicates.16 According to the ECJ, ‘genuine and effective’ work means all types of work with the exception of activities of a scale so small as to be regarded as purely marginal or ancillary. Positions that are of limited duration, include only a small amount of work, or are irregular may be excluded.17 The ‘genuine and effective’ work criteria arguably will not have a strong effect, as activities involving only a small amount of work or of limited duration will not fulfil the salary criterion or the one year criterion for the valid work contract or job offer.18 The wording ‘work for, or under the direction of, someone else’ was changed during the Council negotiation. The Commission’s Proposal did not contain the alternative criteria ‘work for’ but requested only ‘under the direction of someone else’. The final wording comes considerably closer to the definition of the term ‘worker’ as it exists in Article 45 TFEU (ex. Article 39 TEC) and may be taken as an intention to opt to that extent for an assimilated interpretation. As a second element, the Directive requires that the activity ‘is paid’. The amount of 6 salary is specified in Article 5(3). The decision to exclude unpaid highly qualified employment ensures that the applicant has the means to maintain him/herself and to cover return costs if necessary without having recourse to the social assistance system of the Member State concerned.19 It is also due to the fact that the Directive follows a demand-driven approach. The third element requires that the applicant demonstrates adequate and specific 7 competence as proven by ‘higher professional qualifications’. This specification requires from the third-country national that he/she has the necessary competencies in relation to the concrete job. This term relates to the definition under Article 2(g) and suggests an objective definition. The wording ‘as proven by higher professional qualifications’ in the English version is misleading and does not mean that besides ‘higher professional qualifications’ there are other means to prove the acquisition of the prerequisite adequate and specific competence. The wording in other versions also excludes the possibility of such an interpretation. The German version states ‘die erforderliche, angemessene und spezifische Fachkompetenz besitzt, die durch einen ho¨heren beruflichen Bildungsabschluss nachgewiesen ist’. The French version also excludes the possibility of such an understanding: ‘qui posse`de les compe´tences requises approprie´es et spe´cifiques, atteste´es par des qualifications professionnelles e´leve´es’.20

IV. EU Blue Card (Article 2(c)) The term ‘EU Blue Card’ refers to the title issued by a Member State. It entitles its 8 holder to reside and work in the territory of a Member State under the terms of this Directive. Member States are obliged to establish a specific residence permit identifying the permit holder as entitled under the Blue Card Directive. A title, not explicitly issued under the terms of the Directive and determined as such does not entitle its holder to EU-mobility as it is provided in the Directive.

16

See also Council doc. 5255/08 of 18 January 2008, p. 4 and Council doc. 8249/08 of 8 May 2008, p. 3. See in particular, ECJ, Raulin, C-357/89, ECLI:EU:C:1992:87, paras. 10, 13, ECJ, Kempf, C-139/85, ECLI:EU:C:1986:223, para. 10. 18 See Article 5(1)(a) and (3). 19 See Commission Proposal, COM(2007) 637 final, p. 9. 20 See also other versions like the Spanish version ‘tiene la competencia adecuada y especı´fica requerida, demostrada por una cualificacio´n profesional superior’. 17

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V. First Member State (Article 2(d)) 9

The Directive distinguishes between first and second Member States. The term ‘first Member State’ refers to the State in which a highly qualified third-country national is first granted the ‘Blue Card’.

VI. Second Member State (Article 2(e)) 10

A ‘second Member State’ is defined as any Member State other than the first Member State. Given that a Blue Card holder can move to more than two Member States, the ‘second Member State’ may also be a third, a fourth or some other consecutively numbered Member State (see Article 18(8)).

VII. Family Member (Article 2(f)) 11

The term ‘Family Member’ refers to the same notion as defined in Article 4(1) of the Family Reunification Directive 2003/86/EC.21

VIII. Higher professional qualifications (Article 2(g)) 12

‘Higher professional qualifications’ can be established using one of two possible elements. First, ‘higher professional qualifications’ can be established with proof of any ‘higher education qualification’. The term ‘higher education qualification’ is further defined in Article 2(h) (see below MN 9). Second, ‘higher professional qualifications’ can be proven by establishing a certain amount of ‘professional experience’. This latter option is designed to include professionals who do not necessarily need a postsecondary diploma to exercise their activity (experienced managers, certain IT professionals, etc).22 However, the Directive allows the latter option only by way of derogation, when provided by national law. Further, the professional experience must add up to a minimum of five years. To prevent abuse, the professional experience must be of a ‘level comparable to higher education qualifications’. The Directive does not further elaborate the definition of the term ‘comparable’ with regard to professional experience. Some Member States argued that the mere fact of five years of professional experience is not sufficient, and that the main focus should be on education instead of work experience.23 However, Article 2(g) explicitly provides that ‘higher professional qualifications’ can also be established by ‘professional experience’ when provided by national law. It is not required that the focus is on education. To decide whether the professional experience is of a ‘comparable’ level one may take into account the previous work positions of the third-country national and evaluate if these positions typically require an employee with a higher education qualification.

IX. Higher education qualification (Article 2(h)) 13

The term ‘higher education qualification’ is part of the definition of ‘higher professional qualifications’ in Article 2(g). Article 2(h) mentions diplomas and certificates. 21

See above Hailbronner/Are´valo, Family Reunification Directive 2003/86/EC Article 4 MN 3 et seqq. See Commission Proposal, COM(2007) 637 final, p. 9. 23 Council doc. 9666/08 of 19 June 2008, p. 4, footnote 6 and Council doc. 11512/08 of 24 July 2008, p. 4, footnote 3. 22

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‘Other evidence of formal qualifications’ is also sufficient. The formal qualification must be issued by a competent authority attesting the ‘successful completion of a postsecondary education programme’. A ‘post-secondary education programme’ refers to a set of courses provided by an educational establishment. The ‘educational establishment’ must be an educational establishment recognised as a higher education institution by the State within which it is located or must be a public higher education institution itself. The English version does not explicitly make such a differentiation;24 the German version, however, refers explicitly to both alternatives: public higher education institutions and institutions recognised as such by the State in which they are located.25 The authority to recognise educational establishments rests with the third countries. A higher education qualification shall be taken into account under the condition that the studies needed to obtain it lasted at least three years. The wording ‘taken into account’ provides a strong argument that Member States do not have an obligation to recognize such qualifications. Also, it is unclear what kind of obligations Member States have if the studies needed to obtain a given qualification lasted less than three years. The different wording in the first and second sentences of Article 2(h) could mean that Member States are obliged to take into account a qualification if the studies needed to obtain it lasted at least three years, and that Member States have discretion with regard to other qualifications. However, the different wording in Article 2(h) could also mean that the three-year criterion is a minimum criterion. This would mean that Member States could not take into account a qualification if the studies needed to obtain it lasted less than three years. The later interpretation is supported by recital 9 of the preamble of the Directive. Recital 9 of the preamble states that reference may be made to the 1997 ISCED (International Standard Classification of Education) levels 5a and 6 in order to evaluate if the third-country national possesses the higher education qualifications. Levels 5a and 6, however, also require having completed studies of at least three years. This means that the three-year criterion is a minimum criterion. Member States shall only take into account qualifications if the studies needed to acquire said qualifications lasted at least three years.

X. Professional experience (Article 2(i)) The term ‘professional experience’ is part of the definition of ‘higher professional 14 qualifications’ in Article 2(g), which refers to Article 5(1)(c) and concerns unregulated professions. ‘Professional experience’ is defined as the actual and lawful pursuit of the profession concerned. The definition is nearly congruent with the definition of ‘professional experience’ in Article 3(1)(f) of Directive 2005/36/EC.26

XI. Regulated profession (Article 2(j)) The term ‘regulated profession’ as defined in Article 2(j) refers to Article 5(1)(b). It 15 is defined with reference to the definition given in Article 3(1)(a) of the Directive 2005/ 36/EC.27 This means that access to certain (regulated) professions is restricted to holders of specific qualifications. 24 See the English version: ‘an educational establishment recognised as a higher education institution by the State in which it is situated’, see Article 2(h). 25 See the German version: ‘in einer staatlichen oder staatlich anerkannten Hochschule’, see Article 2(h). 26 Directive 2005/36/EC (OJ 2005 L 255/22) on the recognition of professional qualifications. 27 Directive 2005/36/EC (OJ 2005 L 255/22) on the recognition of professional qualifications.

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Article 3 Scope 1. This Directive shall apply to third-country nationals who apply to be admitted to the territory of a Member State for the purpose of highly qualified employment under the terms of this Directive. 2. This Directive shall not apply to third-country nationals: (a) who are authorised to reside in a Member State on the basis of temporary protection or have applied for authorisation to reside on that basis and are awaiting a decision on their status; (b) 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(15) or have applied for international protection under that Directive and whose application has not yet given rise to a final decision; (c) who are beneficiaries of protection in accordance with national law, international obligations or practice of the Member State or have applied for protection in accordance with national law, international obligations or practice of the Member State and whose application has not given rise to a final decision; (d) who 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; (e) who are family members of Union citizens who have exercised, or are exercising, their right to free movement within the Community in conformity 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 States(16); (f) who enjoy EC long-term resident status in a Member State in accordance with Directive 2003/109/EC and exercise their right to reside in another Member State in order to carry out an economic activity in an employed or self-employed capacity; (g) who enter a Member State under commitments contained in an international agreement facilitating the entry and temporary stay of certain categories of trade and investment-related natural persons; (h) who have been admitted to the territory of a Member State as seasonal workers; (i) whose expulsion has been suspended for reasons of fact or law; (j) who are covered by 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 provision of services(17) as long as they are posted on the territory of the Member State concerned. In addition, this Directive shall not apply to third-country nationals and their family members, whatever their nationality, who, under agreements between the Community and its Member States and those third countries enjoy rights of free movement equivalent to those of Union citizens. 3. This Directive shall be without prejudice to any agreement between the Community and/or its Member States and one or more third countries, that lists the (15)

OJ L 304, 30.9.2004, p. 12. OJ L 158, 30.4.2004, p. 77, as corrected by OJ L 229, 29.6.2004, p. 35. (17) OJ L 18, 21.1.1997, p. 1. (16)

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professions which should not fall under this Directive in order to assure ethical recruitment, in sectors suffering from a lack of personnel, by protecting human resources in the developing countries which are signatories to these agreements. 4. This Directive shall be without prejudice to the right of the Member States to issue residence permits other than an EU Blue Card for any purpose of employment. Such residence permits shall not confer the right of residence in the other Member States as provided for in this Directive. Content I. General remarks and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Scope of the Directive (Article 3(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Exclusion from the scope of the Directive (Article 3(2)) . . . . . . . . . . . . . . . . . . . 1. Persons under temporary protection (Article 3(1)(a)) . . . . . . . . . . . . . . . . . . . 2. Persons under refugee status or subsidiary protection status (Article 3(1)(b)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Beneficiaries of protection in accordance with national law, international obligations or practices of the Member States (Article 3(2)(c)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Researcher (Article 3(2)(d)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Family members of EU citizens (Article 3(2)(e)) . . . . . . . . . . . . . . . . . . . . . . . . . 6. Long-term residents (Article 3(2)(f)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. Persons entering in accordance with an international agreement (Article 3(2)(g)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. Seasonal workers (Article 3(2)(h)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9. Persons whose expulsion has been suspended (Article 3(2)(i)) . . . . . . . . . 10. Posted workers (Article 3(2)(j)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11. Persons who enjoy rights of free movement equivalent to those of EU citizens (Article 3(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Assurance of ethical recruitment (Article 3(3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Coexistence of national provisions (Article 3(4)) . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

I. General remarks and drafting history Article 3 dictates the scope of the Directive. According to Article 3(1) the Directive is 1 applicable to third-country nationals who apply for admission to a Member State for the purpose of highly qualified employment under the terms of the Directive. Whereas Article 3(2) limits the scope of the Directive by excluding certain groups, Article 3(3) considers the optional protection of developing countries to avoid the so-called ‘Brain Drain’. Article 3(4) was added during Council negotiations and introduced the possibility of alternative national residence permits for highly qualified third-country nationals. The original intention of the Commission’s Proposal was to ensure that those applicants who meet all the relevant requirements should only be admitted by the requested Member State on the basis of the Directive, rather than on the basis of national schemes.28 Thus, the Blue Card should be considered a priority status. However, due to insistence by representatives of Member States who wanted more flexibility, Article 3(4) was introduced.

II. Scope of the Directive (Article 3(1)) The Directive shall apply to third-country nationals who apply to be admitted into 2 the territory of a Member State for the purpose of highly qualified employment. The 28

Council doc. 8249/08 of 8 May 2008, p. 9.

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somewhat imprecise wording does not exclude persons whose application has been granted. The Directive also applies to stateless people, as stateless people are considered as third-country nationals (see above Article 2 MN 2).

III. Exclusion from the scope of the Directive (Article 3(2)) 3

Article 3(2) excludes certain groups from the scope of the Directive. The groups that have been excluded can be largely divided into three categories.29 The first group constitutes persons who are authorised to reside in a Member State for humanitarian reasons, or who have applied for a residence permit on such grounds. This group encompasses persons under temporary protection, beneficiaries of international protection within the meaning of the Asylum Qualification Directive 2011/95/EU (former Asylum Qualification Directive 2004/83/EC) and beneficiaries of protection in accordance with national law or international obligations.30 The second group is made up of persons who fall or may fall under special provisions: researchers, family members of EU citizens, long-term residents, persons entering a Member State in accordance with international agreements, seasonal workers, posted workers and persons who enjoy rights of free movement equivalent to those of EU citizens.31 Finally, the third group is made up of persons for whom their expulsion has been suspended for reasons of fact or law.32

1. Persons under temporary protection (Article 3(1)(a)) 4

Article 3(2)(a) excludes two categories of persons. Firstly, it excludes persons who are authorised to reside in a Member State on the basis of temporary protection. Secondly, it excludes persons who applied for authorisation to reside on that basis and who are awaiting a decision on their status. The term ‘temporary protection’ encompasses both the EU concept of the Temporary Protection Directive 2001/55/EC and any national concept of the term. This means that persons who enjoy more favourable provisions for temporary protection according to national law are also excluded from the scope of the Directive.33 The wording in other versions of the Directive supports this interpretation. The French version, for example, states ‘en vertu d’une protection temporaire’ and, in using the plural form, indicates that several types of temporary protection may exclude persons from the scope of the Directive. The Spanish version also supports such an interpretation: ‘en virtud de una proteccio´n temporal’. The term ‘awaiting a decision’ in the second alternative differs from the wording used in Article 3(1)(b) and (c). Contrary to Article 3(1)(b) and (c), the person does not have to be awaiting a ‘final decision’. This difference in wording does not indicate that Article 3(1)(a) excludes in its second alternative only persons who are awaiting a first decision from the competent authority. Since persons are excluded who are authorised to reside in a Member State on this ground, it cannot be assumed that persons whose application has been rejected and who have filed a judicial appeal may apply for a Blue Card.

29 See also Kuczynski/Solka, ‘Die Hochqualifiziertenrichtlinie’, Zeitschrift fu ¨ r Ausla¨nderrecht (2009), p. 221. 30 See Article 3(1)(a), (b) and (c). 31 See Article 3(1)(d), (e), (f), (g), (h) and (j). 32 See Article 3(1)(i). 33 See also Article 3(5) of the Temporary Protection Directive 2001/55/EC allows Member States to adopt or retain more favourable conditions for persons covered by temporary protection.

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2. Persons under refugee status or subsidiary protection status (Article 3(1)(b)) Article 3(2)(b) excludes two categories of persons. First, the Directive excludes 5 persons who are beneficiaries of international protection under the Asylum Qualification Directive 2011/95/EU (former Asylum Qualification Directive 2004/83/EC). The term ‘beneficiaries of international protection’ refers to persons under refugee status and persons under subsidiary protection status. Second, the Directive excludes persons who have applied for international protection under that Directive and who have applications that have not yet given rise to a final decision. It is unclear if the term ‘has not given rise to a final decision’ only includes administrative proceedings or if it also includes judicial remedies. Given that a decision is only definitive after the last decision of a court, the term ‘final decision’ also includes judicial remedies.34

3. Beneficiaries of protection in accordance with national law, international obligations or practices of the Member States (Article 3(2)(c)) Article 3(2)(c) excludes two categories of persons. First, it excludes persons who are 6 already granted protection in accordance with the reasons mentioned in Article 3(2)(c). Second, it excludes persons who have filed an application for protection that have not yet given rise to a final decision. Article 3(2)(c) excludes persons who are beneficiaries of protection or persons who have applied for protection in accordance with national law, international obligations or the practices of the Member State. The term in accordance with ‘national law’ thus excludes all persons who are not already excluded by Article 3(2)(b). In Germany this concerns e. g. persons protected under the first sentence of sec. 60(5) and (7) AufenthG or Article 16a GG. ‘International obligations’ are obligations imposed by international conventions, such as Article 3 CAT, Article 3 ECHR and Article 7 ICCPR.

4. Researcher (Article 3(2)(d)) The wording of Article 3(2)(d) excludes persons who apply to enter a Member State 7 as a researcher (as defined by the Researchers’ Directive 2005/71/EC). According to the wording of the provision, persons who are granted residence under the Researchers’ Directive 2005/71/EC are not excluded from the scope of the Directive. Recital 8 of the preamble of the Directive precludes a more restrictive interpretation, since it is based on the assumption that Member States may determine the volume of third-country nationals for the purpose of employment including persons who are legally residing in Member States as researchers under the Researchers’ Directive 2005/71 (for the term researcher see Article 2(d)). The Directive hence implies that, researchers resident in the territory of a Member State may change their status under the condition that existing quotas are not exhausted.

5. Family members of EU citizens (Article 3(2)(e)) Article 3(2)(e) refers to Article 2 No. 2 of the Free Movement Directive 2004/38/EC 8 and excludes from the scope of the Directive family members of EU Citizens who have exercised or are exercising their right to free movement within the Community in 34 In Germany the rejected claims to asylum or to refugee status or subsidiary status may be appealed in administrative courts; contrary to normal proceedings, no preliminary proceedings are conducted.

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conformity with the Free Movement Directive 2004/38/EC. The term ‘family member’ in Article 3(2)(e) refers to Article 4(1) of the Family Reunification Directive 2003/86/EC. The term ‘exercised or are exercising their right’ relates to two groups of persons. Firstly, it excludes from the scope of the Directive those persons who are currently exercising their right to free movement in conformity with the Free Movement Directive 2004/38/EC. Secondly, it also excludes those persons who have exercised this right in the past and who are at present still covered by the Free Movement Directive 2004/38/EC. This relates to persons who exercised their right to free movement in the past and currently exercise their right of permanent residence in the territory in a Member State in accordance with chapter IV of the Free Movement Directive 2004/38/EC.

6. Long-term residents (Article 3(2)(f)) 9

Article 3(2)(f) excludes from the scope of the Directive those persons who enjoy EC long-term resident status in a Member State in accordance with the Long Term Residents’ Directive 2003/109/EC and who exercise their right in another Member State to carry out an economic activity.

7. Persons entering in accordance with an international agreement (Article 3(2)(g)) 10

Article 3(2)(g) excludes persons from the scope of the Directive who enter a Member State in accordance with an international agreement, facilitating the entry and temporary stay of certain categories of trade and investment-related natural persons. This concerns especially the GATS.35

8. Seasonal workers (Article 3(2)(h)) 11

Article 3(2)(h) excludes seasonal workers. The term refers to the Seasonal Workers Directive 2014/36/EU, which was only adopted in 2014. The seasonal worker must be admitted as such to the territory of the Member State.

9. Persons whose expulsion has been suspended (Article 3(2)(i)) 12

Article 3(2)(i) excludes third-country nationals whose expulsion has been suspended for reasons of fact or law. Article 3(2)(i) does not make reference to special international provisions or to national law. The wording of Article 3(2)(i) includes national and international provisions, such as family protection under Article 8(1) or non-refoulement under Article 3 ECHR.36 Reasons of fact may include e. g. missing documents, especially passports and identity cards, or the unwillingness of the country of origin to admit the person concerned to the territory.

10. Posted workers (Article 3(2)(j)) 13

Article 3(2)(j) excludes persons who are covered by Directive 96/71/EC37 as long as these persons are posted on the territory of the relevant Member States. It is not clear whether persons are excluded if they apply for a Blue Card in a Member State other than the Member State in which they are posted. The wording ‘on the territory of the Member States concerned indicates a restrictive interpretation whereby the person is 35 See also Peers, ‘Legislative Update: EC Immigration and Asylum Law Attracting and Deterring Labour Migration: The Blue Card and Employer Sanction Directives’, EJML 11 (2009), p. 391. 36 See ECtHR, Judgement of 15 November 1996, No. 22414/93, Chahal v. UK. 37 Posted Workers Directive 96/71/EC.

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only excluded if he or she applies for a Blue Card in the same Member State. The French and the German versions support this interpretation: ‘qui sont couverts par la directive 96/71/CE du Parlement europe´en et du Conseil du 16 de´cembre 1996 concernant le de´tachement de travailleurs effectue´ dans le cadre d’une prestation de services tant qu’ils sont de´tache´s sur le territoire de l’E´tat membre concerne´’ and ‘Drittstaatsangeho¨rige, die unter die Richtlinie 96/71/EG des Europa¨ischen Parlaments und des Rates vom 16.Dezember 1996 u¨ber die Entsendung von Arbeitnehmern im Rahmen der Erbringung von Dienstleistungen fallen, fu¨r die Dauer ihrer Entsendung in das Hoheitsgebiet des betreffenden Mitgliedstaats’.38

11. Persons who enjoy rights of free movement equivalent to those of EU citizens (Article 3(2)) The second subparagraph of Article 3 excludes third-country nationals and family 14 members entitled to free movement equivalent to free movement rights of EU citizens on the basis of international agreements with the EU, such as the EEA States Iceland, Liechtenstein and Norway, Swiss citizens and their family members are also excluded from the scope of the Directive under the bilateral agreements with the EU.39

IV. Assurance of ethical recruitment (Article 3(3)) Article 3(3) provides for an exclusion of persons listed in an agreement between the 15 EU and developing third countries in order to protect such countries against undesirable brain drain.40 The purpose to prevent brain drain is also recognized in recital 22 of the preamble of the Directive and Article 8(4). Recital 22 of the preamble appeals to Member States to refrain from pursuing active recruitment in developing countries in sectors suffering from a lack of personnel. Article 8(4) allows Member States to reject applications to help ensure ethical recruitment. Whereas Article 3(3) requires an agreement between the EU and a developing country (no such agreement has been concluded until now), recital 22 and Article 8(4) allow Member States to reject an application according to their discretion to prevent recruitment in branches in which there is a lack of qualified personnel in the country of origin.

V. Coexistence of national provisions (Article 3(4)) Article 3(4) allows Member States to maintain or establish national provisions grant- 16 ing an alternative access to a residence permit for highly qualified employment. National law may provide for more or less favourable conditions. National residence permits not 38 See also the Spanish version: ‘a los que se aplique la Directiva 96/71/CE del Parlamento Europeo y del Consejo, de 16 de diciembre de 1996, sobre el desplazamiento de trabajadores efectuado en el marco de una prestacio´n de servicios, mientras dure su desplazamiento en el territorio del Estado miembro de que se trate’. 39 Agreement of 21 June 1999 between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, entered into force on 1st June 2002, OJ 2002 L 114/6, last amended by the Protocol to the Agreement of 27 May 2008 between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, regarding the participation, as contracting parties of the Republic of Bulgaria and Romania pursuant to their accession to the European Union, OJ 2009 L 124/53. 40 For an extensive discussion of ethical recruitment and circular migration see also Martı´n Asensio, ‘Die “Blue Card”-Richtlinie – eine Maßnahme der politischen Inkoha¨renz der EU im Interesse der Erreichung ihrer Ziele im Rahmen der EU-Entwicklungspolitik’, Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik (2010), p. 180–182.

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issued under the Directive do not confer the right to move to and reside in other Member States as provided for in the Directive. According to Article 21, the Commission shall report every three years on the assessment of the impacts of Article 3(4).

Article 4 More favourable provisions 1. This Directive shall be without prejudice to more favourable provisions of: (a) Community law, including bilateral or multilateral agreements concluded between the Community or between the Community and its Member States and one or more third countries; (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 persons to whom it applies in respect of the following provisions of this Directive: (a) Article 5(3) in application of Article 18; (b) Articles 11, 12(1), second sentence, 12(2), 13, 14, 15 and 16(4). Content I. General remarks and drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. More favourable provisions of EU law, and bilateral and multilateral agreements (Article 4(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. More favourable national provisions (Article 4(2)) . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3

I. General remarks and drafting history 1

Whereas Article 3(4) allows Member States to issue national residence permits as an alternative to the Blue Card status, Article 4 provides for a right of Member States to maintain or establish more favourable provisions in international agreements to nationals of contracting states. In addition, Blue Card holders may be granted within the limits of Article 4(2) a more favourable treatment than provided for in the Directive. Article 4 was changed significantly during Council negotiations. In the Explanatory Memorandum of the Commission’s Proposal it was underlined that the Proposal does not allow Member States to grant more favourable conditions for a person’s first entry into the Community so as not to undermine the scope of the Directive. The intention of the Commission’s Proposal was to make the EU more attractive for highly qualified persons by simplifying the admission procedures for the first entry. The final version of Article 4(2) does not correspond to the Commission’s original intention to provide for uniform conditions on granting residence permits to highly skilled workers as it limits the areas in which more favourable conditions are permitted. The possibility to grant more favourable conditions was introduced after Article 3(4) was inserted. Article 3(4) allows for the maintenance of national titles as an alternative to the Blue Card. The exclusion of more favourable conditions after the introduction of Article 3(4) was meaningless as Member States could just create a national scheme which has a lower threshold for admission.41 The introduction of the more favourable clause was also for 41 Guild, ‘EU Policy on Labour Migration: A First Look at the Commission’s Blue Card Initiative’, Centre for European Policy Studies 145 (2007), p. 4.

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another reason considered necessary; some of the Member States are bound by other international obligations. Due to the fact, that e. g. the European Convention on the Legal Status of Migrant Workers42 grants more favourable provisions in case of unemployment, namely five months to find a new job, the allowance of more favourable provisions was necessary with regard to Article 13.

II. More favourable provisions of EU law, and bilateral and multilateral agreements (Article 4(1)) According to Article 4(1), the Directive does not preclude provisions that are more 2 favourable under EU law or under bilateral and multilateral agreements of the EU and/ or the Members States with third countries. The terms EU law, and bilateral and multilateral agreements include existing agreements as well as future agreements.43 Article 4(1) does not explicitly clarify for whom the provision should be more favourable. From the purpose of the provision and its systematic context it follows that the term ‘more favourable’ refers to third-country national applying for a residence permit.

III. More favourable national provisions (Article 4(2)) Article 4(2) allows Member States to provide more favourable provisions only with 3 regard to the mentioned provisions of the Directive. Firstly, Article 4(2)(a) allows more favourable provisions for persons to whom the Directive applies in respect to Article 5(3) in application of Article 18. This article refers to the adoption or retention of more favourable conditions with regard to the minimum salary threshold. However, it concerns only the conditions for admission to residency in a second Member States. Secondly, Article 4(2)(b) establishes the ability to adopt or retain more favourable provisions in respect to procedural safeguards (Article 11), certain rights concerning access to the labour market (second sentence of Article 12(1) and Article 12(2), temporary unemployment provisions (Article 13), equal treatment rights (Article 14), provisions regarding family members (Article 15) and certain provisions regarding EC long-term resident status for Blue Card holders (Article 16(4)).

CHAPTER II CONDITIONS OF ADMISSION Article 5 Criteria for admission 1. Without prejudice to Article 10(1), a third-country national who applies for an EU Blue Card under the terms of this Directive shall: 42 See Article 9 no. 4 of the European Convention on the Legal Status of Migrant Workers, ETS No. 93, adopted on 24 November 1977, entered into force on 1 May 1983 [hereinafter European Convention on the Legal Status of Migrant Workers] available at: http://conventions.coe.int/Treaty/EN/Treaties/Html/ 093.htm [last access: 25 March 2010]. The European Convention on the Legal Status of Migrant Workers has been ratified by Albania, France, Italy, Moldova, Norway, Netherlands, Portugal, Sweden, Spain, Turkey and Ukraine. Four other Member States: Belgium, Germany, Greece and Luxembourg, have signed it. 43 Council doc. 6051/08 of 28 February 2008, p. 2 and Council doc. 8249/08 of 8 May 2008, p. 8.

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(a) present a valid work contract or, as provided for in national law, a binding job offer for highly qualified employment, of at least one year in the Member State concerned; (b) present a document attesting fulfilment of the conditions set out under national law for the exercise by Union citizens of the regulated profession specified in the work contract or binding job offer as provided for in national law; (c) for unregulated professions, present the documents attesting the relevant higher professional qualifications in the occupation or sector specified in the work contract or in the binding job offer as provided for in national law; (d) present a valid travel document, as determined by national law, an application for a visa or a visa, if required, and evidence of a valid residence permit or of a national long-term visa, if appropriate. Member States may require the period of validity of the travel document to cover at least the initial duration of the residence permit; (e) present evidence of having or, if provided for by national law, having applied for a 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 resulting from, the work contract; (f) not be considered to pose a threat to public policy, public security or public health. 2. Member States may require the applicant to provide his address in the territory of the Member State concerned. 3. In addition to the conditions laid down in paragraph 1, the gross annual salary resulting from the monthly or annual salary specified in the work contract or binding job offer shall not be inferior to a relevant salary threshold defined and published for that purpose by the Member States, which shall be at least 1,5 times the average gross annual salary in the Member State concerned. 4. When implementing paragraph 3, Member States may require that all conditions in the applicable laws, collective agreements or practices in the relevant occupational branches for highly qualified employment are met. 5. By way of derogation to paragraph 3, and for employment in professions which are in particular need of third-country national workers and which belong to the major groups 1 and 2 of ISCO, the salary threshold may be at least 1,2 times the average gross annual salary in the Member State concerned. In this case, the Member State concerned shall communicate each year to the Commission the list of the professions for which a derogation has been decided. 6. This Article shall be without prejudice to the applicable collective agreements or practices in the relevant occupational branches for highly qualified employment. Content I. General remarks and drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Mandatory criteria for admission (Article 5(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Valid work contract or job offer (Article 5(1)(a)) . . . . . . . . . . . . . . . . . . . . . . . . 2. Regulated profession (Article 5(1)(b)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Unregulated profession (Article 5(1)(c)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Travel document, visa, residence permit (Article 5(1)(d)) . . . . . . . . . . . . . . 5. Sickness insurance (Article 5(1)(e)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Threat to public policy, security or health (Article 5(1)(f)). . . . . . . . . . . . . III. Facultative criteria for admission (Article 5(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Salary criterion (Article 5(3), (4), (5) and (6)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. General remarks and drafting history Article 5 lays down the conditions for admission. Besides general admission condi- 1 tions, which are also common to other directives in the field of migration law44, Article 5 mentions admission criteria that are specific to the admission of highly qualified persons. General admission conditions include a valid travel document (Article 5(1)(d)), sickness insurance (Article 5(1)(e)) and evidence that the person concerned is not considered a threat to public policy, security and health (Article 5(1)(f)). The specific admission conditions include a valid work contract (Article 5(1)(a)), the respective attestations concerning unregulated and regulated professions (Article 5(1)(b) and (c)) and fulfilment of the salary criterion (Article 5(3)(4)(5)). The salary criterion (Article 5(3)) was one of the most discussed provisions during Council negotiations. The Commission sought to set a relative minimum threshold to ensure that Member States would not provide for a salary requirement that could be considered as too low for a national or EU highly qualified worker to accept the vacancy, although corresponding to his/her qualifications. The final provision differs from the Commission’s Proposal but was not changed in its substance.45 Article 5(3) now requires that the gross annual salary must not be less than at least 1,5 times the average gross annual salary in the respective Member State. A special provision in the Commission’s Proposal, which provided for a lower salary threshold for persons less than 30 years to enable young, early-career, highly qualified persons to get the Blue Card, was removed.46

II. Mandatory criteria for admission (Article 5(1)) Article 5(1) sets out the criteria that are required for third-country nationals.

2

1. Valid work contract or job offer (Article 5(1)(a)) As admission is demand-driven, a work contract or a binding job offer must be 3 presented. Article 5(1)(a) introduces two alternative conditions: either a valid work contract or a binding job offer. Member States may decide which of the two alternative conditions is required (‘as provided for in national law’). The validity of the work contract and whether or not a job offer is binding is to be determined by national law. Some Member States do not acknowledge the notion of a binding job offer.47 Member States that only recognise the validity of work contracts may therefore reject a job offer as insufficient. Both valid work contracts and binding job offers must be for a period of at least one year. Article 7(2) is misleading insofar as the second sentence of Article 7(2) provides that for cases in which the work contract covers a period shorter than the standard period, Member States shall issue or renew the Blue Card for the duration of the work contract plus three months. However, this does not apply if the standard period is only one year. If an original work contract does not meet the one-year requirement, the admission condition set out in Article 5(1)(a) is not fulfilled and the application must be rejected (see below Article 7 MN 3). Therefore, agreed working periods shorter than one 44 See Article 6(1)(a), (c), (d) of the Students Directive 2004/114/EC, Article 6(2)(c) and Article 7(1)(a) Researchers Directive 2005/71/EC. 45 See Council doc. 11512/08 of 24 July 2008, p. 9. 46 See Article 6 of the Commission Proposal, COM(2007) 637 final, p. 22. 47 See also Council doc. 6051/08 of 28 February 2008, p. 4.

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year, such as many part-time contracts, do not fulfil the requirements of Article 5(1)(a). Also, the singular forms used in the phrases ‘a valid work contract’ and ‘a binding job offer’ make clear that contracts with different employers do not fulfil the requirements of Article 5(1)(a) if they sum up to one only when combined together. Persons who do not fulfil the one-year criterion may be authorised on the basis of a national permit. The work contract or job offer must relate to highly qualified employment (see also the definition of this term in Article 2(b)). Hence, article 5(1)(a) includes the qualification requirements as set out in Article 5(1)(c).

2. Regulated profession (Article 5(1)(b)) 4

Article 5(1)(b) must be read together with Article 5(1)(c) and Article 14((1)(c). While Article 5(1)(b) and (c) concern admission requirements for regulated and unregulated professions, Article 14(1)(c) concerns the rights of third-country nationals who are already holders of a Blue Card. Article 5(1)(b) requires that the third-country national comply with regulated profession rules as they apply to EU citizens. The term ‘regulated profession’ is defined in Article 2(j), which refers to Article 3(1)(a) of the Directive 2005/36/EC.48 Equal treatment with EU citizens means that Member States are obliged to recognize professional qualifications acquired by a third-country national in another Member State according to the recognition rules set out in the Directive 2005/36/EC. Thus, Blue Card applicants enjoy a more favourable position than other third-country nationals with regard to the recognition of professional qualifications acquired in another Member State. The Directive, however, does not contain a similar recognition rule for professional qualifications acquired by a third-country national in a third country. Also, recital 19 of the preamble of the Directive indicates that different rules should apply for professional qualifications acquired by a third-country national in a third country (‘Professional qualifications acquired by a third-country national in another Member State should be recognised in the same way as those of EU citizens’ and ‘Qualifications acquired in a third country should be taken into account in conformity with Directive 2005/36/EC’). With regard to professional qualifications acquired by a EU citizen in another Member State, the ECJ held in its Hocsman case that Member States are obliged to ‘take into consideration all the diplomas, certificates and other evidence of formal qualification of the person concerned and his relevant experience, by comparing the specialized knowledge and abilities so certified and that experience with the knowledge and qualifications required by the national rules. If that comparative examination of diplomas and professional experience results in the finding that the knowledge and qualifications certified by the diploma awarded abroad correspond to those required by the national provisions, the competent authorities of the host Member State must recognise that diploma’.49 According to the Hocsman case, the obligation of Member States to take into account qualifications acquired in a third country may, under certain circum48 Article 3(1)(a) of the Directive 2005/36/EC (OJ 2005 L 255/22) on the recognition of professional qualifications: ‘regulated profession’: ‘a professional activity or group of professional activities, access to which, the pursuit of which, or one of the modes of pursuit of which is subject, directly or indirectly, by virtue of legislative, regulatory or administrative provisions to the possession of specific professional qualifications; in particular, the use of a professional title limited by legislative, regulatory or administrative provisions to holders of a given professional qualification shall constitute a mode of pursuit. Where the first sentence of this definition does not apply, a profession referred to in para. 2 shall be treated as a regulated profession.’ 49 ECJ, Hocsman, C-238/98, EU:C:2000:440, paras 35 and 36. See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-Card-Richtlinie 2009/50/EG und ihre Umsetzung in Deutschland (Nomos 2014), p. 99–102.

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stances, also lead to an obligation to recognize them. As Article 5(1)(b) provides for the equal treatment with EU citizens, the rules set out in the Hocsman case apply equally to third-country nationals applying for a Blue Card.50

3. Unregulated profession (Article 5(1)(c)) Article 5(1)(b) must be considered together with Article 5(1)(c) and Article 14((1)(c). 5 While Article 5(1)(b) and (c) concern admission requirements for regulated and unregulated professions, Article 14(1)(c) relates to the rights of third-country nationals who are already holders of a Blue Card. Article 5(1)(c) concerns unregulated professions. ‘Unregulated professions’ are all professions that are not regulated (see also definition in Article 2(j)). Article 5(1)(c) requires that the third-country national presents the documents attesting the ‘higher professional qualifications’ required of the position. The term ‘higher professional qualifications’ refers to the definition in Article 2(g).

4. Travel document, visa, residence permit (Article 5(1)(d)) Article 5(1)(d) requires the third-country national to present a valid travel document, 6 an application for a visa or a visa, if required, and evidence of a valid residence permit or of a national long-term visa, if appropriate. The requirement set out in Article 5(1)(d) is a general admission requirement and is also common to other directives in the field of migration law.51

5. Sickness insurance (Article 5(1)(e)) Article 5(1)(e) requires the third-country national to provide proof of sickness 7 insurance. The requirement set out in Article 5(1)(e) is a general admission requirement and is also common to other directives in the field of migration law.52

6. Threat to public policy, security or health (Article 5(1)(f)) The third-country national must not be considered a ‘threat to public policy, public 8 security and public health’. The wording of the provision appears in an identical form in Article 6 of the Students Directive 2004/114/EC and Article 7(1)(d) of the Researchers’ Directive 2005/71/EC. In this Directive, the terms ‘public order’, ‘public security’ and ‘public health’ also appear in Article 9(3)(a). With a slightly different wording, this article gives Member States the right to withdraw or refuse to renew an EU Blue Card. The meanings of the terms ‘public policy’ and ‘public security’ under Article 5(1)(f) of the Directive are not identical to the interpretations developed by the ECJ for the terms ‘public order’ and ‘public security’ in Article 45(3) and Article 52(1) of the TFEU, which are also used in Article 27 of the Free Movement Directive 2004/38/EC. Some of the rules and principles developed in the ECJ’s jurisprudence and subsequently concretised in the Free Movement Directive 2004/38/EC may be considered applicable by analogy to third-country nationals. However, one has to distinguish between principles specifying the general principle of proportionality and rules that are intrinsically connected with the free movement of persons for EU citizens and their family 50 See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-Card-Richtlinie 2009/50/EG und ihre Umsetzung in Deutschland (Nomos, 2014), p. 99–102. 51 See Article 6(1)(a) of the Students Directive 2004/114/EC and Article 7(1)(a) of the Researchers Directive 2005/71/EC. 52 See Article 6(1)(c) of the Students Directive 2004/114/EC and Article 6(2)(c) of the Researchers Directive 2005/71/EC.

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Immigration

members. Since the Blue Card Directive cannot be viewed as an expression of a principle of free movement, one will have to distinguish between the admission and the withdrawal of a Blue Card. It is clear that for the admission of a third-country national, a larger concept of public policy applies since the Blue Card Directive does not grant the right to admission. Therefore, Member States have a large discretion in decisions on the admission of a third-country national into their territories. The principles developed by the ECJ concerning the terms ‘public policy’ and ‘public security’ with regard to EU citizens are therefore not applicable. The right of States to admit foreigners into their territory and the right to deny access is part of the sovereignty of States. This fundamental right of state sovereignty is limited only regarding EU citizens. The Directive itself, the drafting history and a comparison with other directives regarding third-country nationals do not indicate that the Member States wanted to be restricted in the exercise of their right to allow or deny admission to country nationals. Therefore, the terms ‘public policy’ and ‘public security’ have to be defined autonomously in the Directive. Interpreting the terms is left to the discretion of the Member States, which is true for the term ‘public health’ as well. In the development of an interpretation of each of these terms, Member States may orient themselves to the existing interpretations within the ‘ordre public’ provision but they may also interpret the terms in a wider sense.

III. Facultative criteria for admission (Article 5(2)) 9

According to Article 5(2), Member States may require the applicant to provide his or her address in the territory of the Member State concerned. The provision is problematic insofar as it foils the intention of the Directive to facilitate admission procedures to make the EU more attractive for potential workers. Arguably, Member States may also require the third-country national to provide his/her new address if the address changes. Article 9(3)(c) contains a facultative option to withdraw the Blue Card if the Blue Card holder has not communicated his/her current address. As Article 9 only concerns cases involving the withdrawal or non-renewal of the Blue Card, this can only occur after the Blue Card has already been issued.

IV. Salary criterion (Article 5(3), (4), (5) and (6)) 10

Article 5(3) requires that the gross annual salary not be inferior to at least 1.5 times the average gross annual salary in the Member State concerned. The salary threshold shall not be lowered proportional to the work time (e.g in the case of a part-time job).53 The Member States remain free to define any salary threshold above 1.5 times the average gross annual salary. This is also underlined in recital 10 of the preamble of the Directive. The relevant national salary threshold is to be published by the Member States for that purpose. In order to determine the average gross annual salary in the respective Member States, one should refer to Commission (EUROSTAT) data and, where appropriate, national data (see Article 20(3) and recital 11 of the preamble). The Directive does not specify which data shall be taken into account. For example, it is unclear if Member States should also take into account the salary of self-employed persons or persons working in part-time positions. Due to this lack of specificity, Member States have some choice in the calculation of their salary threshold. If after 53

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Art. 6

Blue Card Directive 2009/50/EC

Part C VIII

two years, Member States grant third-country nationals equal treatment with nationals (second sentence of Article 12(1)), the salary criterion may no longer be applicable. Moreover, the salary criterion may no longer be applicable if the Blue Card holder moves to a second Member State if this second Member State derogates from the salary criterion (see Article 4(2)(a) in conjunction with Article 18 and Article 5(3)). Article 5(5) provides an exception to the salary threshold set out in Article 5(3) and allows Member States to set the salary threshold at a lower level, namely at no less than 1.2 times the average gross annual salary. This option is applicable for employment in certain professions that are particularly in need of foreign labour and that belong to the major groups 1 and 2 of the International Standard Classification of Occupation.54 This provision concerns managers55 and professionals.56 Article 5(4)–(6) requires that all conditions are met concerning the applicable provisions, collective agreements or practices in the relevant occupational branches for highly qualified employment. This is meant to ensure that employment for thirdcountry nationals does not result in a competitive attempt to downgrade established national social standards or practices. The insertion of Article 5(6) was prompted by Member States who voiced concerns that the determination of the salary threshold may have negative effects on their local systems of wages.57 It underscores that Article 5 shall be applied without prejudice to the applicable collective agreements or practices in the relevant occupational branches for highly qualified employment. These concerns are also raised in recital 11, which emphasizes that the sole purpose of this salary threshold is to help determine the scope of the EU Blue Card established by each Member State on the basis of common rules. Therefore, the salary threshold ‘does not aim to determine salaries and therefore does not derogate from the rules or practices at Member States level or from collective agreements and cannot be used to constitute any harmonization in this field’. The Directive fully respects the competences of Member States, particularly with regard to employment, labour and social matters.

Article 6 Volumes of admission This Directive shall not affect the right of a Member State to determine the volume of admission of third-country nationals entering its territory for the purposes of highly qualified employment. Article 6 must be considered together with Article 8. Article 8, which also refers to 1 Article 6 (Article 8(3)), introduces additional reasons why an application for a Blue Card may be refused. According to Article 6, Member States remain free to determine the volume of admission of third-country nationals. This right also includes the ability to not grant residence permits to certain professions, economic sectors or regions.58 The volume can also be set at 54 See also the complete list, available at: http://www.ilo.org/public/english/bureau/stat/isco/docs/resol08.pdf [last accessed: 30 October 2014]. 55 Mentioned are: chief executives, senior officials and legislators, administrative and commercial managers, production and specialized services managers, hospitality, retail and other services managers. 56 Mentioned are: science and engineering professionals, health professionals, teaching professionals, business and administration professionals, information and communications technology professionals, legal, social and cultural professionals. 57 Kuczynski/Solka, ‘Die Hochqualifiziertenrichtlinie’, Zeitschrift fu ¨ r Ausla¨nderrecht (2009), p. 224. 58 See also Council doc. 6051/08 of 28 February 2008, p. 9.

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Immigration

zero. The provision corresponds to Article 79(5) of the TFEU according to which Member States have the right to determine the volume of admission of third-country nationals coming from third countries to their territory to seek work, whether employed or selfemployed. The volume criterion may not only be applied to applications for ‘first entry’, but also to second applications for a residence permit in a second Member State (see Article 18(7). Due to Article 6, the third-country national has no individual right to admission, even if he/she fulfils the conditions set out under Articles 3 and 5.59 This also concerns admission to a second Member State. If quotas are exhausted (or already set at zero) or if the respective profession or branch is excluded from admission to the Member State concerned, an application may be refused (see Article 8(3)). 2 However, the volume criterion is not applicable to persons who apply for admission to a second Member State and who have already been granted long-term resident status according to Articles 16 and 17. For those persons, the provisions of the Long-Term Residents’ Directive 2003/109/EC apply. The volume criterion is also not applicable to the renewal of the Blue Card. The Directive does not contain specific provisions on the renewal of the Blue Card. However, the renewal of the Blue Card is mentioned in several provisions60 and must be possible.61 Article 6 concerns the right of each Member State to set quotas for initial admissions to the labour market for highly qualified employment. Once a third-country national has been granted access to this market, Article 6 is no longer applicable. This interpretation of the Directive is further supported by recital 8 of the preamble, which states that ‘the Directive should be without prejudice to the right of the Member State to determine the volume of admission of third-country nationals entering their territory for the purpose of highly qualified employment’. However, it should be noted that Article 6 is applicable if a third-country national is already legally residing in the territory of the respective Member State under other schemes (as a student, according to the Students Directive 2004/114/EC, or as a researcher, according to the Researchers’ Directive 2005/71/EC) and does not enjoy consolidated access to the labour market of the Member State under EU or national law. The volume criterion applies to these persons if they seek to remain on the territory to exercise a form of highly qualified employment under the conditions of the Directive (see also recital 8 of the preamble).62

CHAPTER III EU BLUE CARD, PROCEDURE AND TRANSPARENCY Article 7 EU Blue Card 1. A third-country national who has applied and fulfils the requirements set out in Article 5 and for whom the competent authorities have taken a positive decision in accordance with Article 8 shall be issued with an EU Blue Card. 59 See also Commission Proposal, COM(2007) 637 final, p. 10, see also Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-Card-Richtlinie 2009/50/EG und ihre Umsetzung in Deutschland (Nomos 2014), p. 139–140, Wiesbrock, Legal Migration to the EU, Brill/Nijhoff 2010, p. 423. 60 See Article 7(2), Article 8(2), Article 9(1), (2), (3), Article 11(3), Article 14(3), Article 20(2). 61 The Directive does not contain a special provision mentioning explicitly the possibility of the renewal of the Blue Card and its condition. However, the renewal of the Blue Card is mentioned in several provisions and must be possible. 62 See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-Card-Richtlinie 2009/50/EG und ihre Umsetzung in Deutschland (Nomos 2014), p. 138.

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Part C VIII

The Member State concerned shall grant the third-country national every facility to obtain the requisite visas. 2. Member States shall set a standard period of validity of the EU Blue Card, which shall be comprised between one and four years. If the work contract covers a period less than this period, the EU Blue Card shall be issued or renewed for the duration of the work contract plus three months. 3. The EU Blue Card shall be issued by the competent authorities of the Member State using the uniform format as laid down in Regulation (EC) No 1030/2002. In accordance with point (a) 7,5–9 of the Annex to that Regulation, Member States shall indicate on the EU Blue Card the conditions for access to the labour market as set out in Article 12(1) of this Directive. Under the heading ‘type of permit’ in the residence permit, Member States shall enter ‘EU Blue Card’. 4. During the period of its validity, the EU Blue Card shall entitle its holder to: (a) enter, re-enter and stay in the territory of the Member State issuing the EU Blue Card; (b) the rights recognised in this Directive. Content I. II. III. IV.

Issuing of the Blue Card (Article 7(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Validity of the Blue Card (Article 7(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Format of the Blue Card (Article 7(3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Entitlements for the Blue Card holder (Article 7(4)). . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 4

I. Issuing of the Blue Card (Article 7(1)) Article 7(1) addresses the issuing of the Blue Card. Article 7(1) demands that two 1 conditions be met for a person to be issued a Blue Card. Firstly, the person must fulfil the conditions set out in Article 5. Secondly, a positive decision must be made in accordance with Article 8. If both conditions are fulfilled, Member States shall issue a Blue Card. It should be 2 noted that Article 7 relates to Article 8 and requires that ‘the competent authorities have taken a positive decision in accordance with Article 8’. A positive decision in accordance with Article 8 may be refused if the applicant is surpassing the volumes of admission provided that such limitations have been set (Article 8(3)), or if the applicant is not meeting labour market tests or any other requirements according to national procedures (Article 8(2)). However, if a third-country national fulfils all the requirements set out in Article 8, it is doubtful whether Member States may refuse a positive decision on discretionary considerations not explicitly mentioned in Article 8. The wording of Article 7(1) (shall) indicates an obligation of Member States to issue a Blue Card if a positive decision has been taken according to Article 8. However, the reference to a ‘positive decision’ rather than to the criteria of Article 8 could be also taken as an indication for a wider discretion of Member States. The wording leaves room for both interpretations. The question as to whether Member States have discretion or not in granting a residence permit was also addressed during Council negotiations. It was underlined during these negotiations that Member States maintain discretion with regard to possible refusals as is set out only in Article 8, or in the case of renewals, as is set out in Article 9. During negotiations it was underlined that the expression ‘a positive decision’ is meant to emphasize that there is no automatic right of admission.63 If no 63

See Council doc. 6051/08 of 28 February 2008, p. 9.

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Immigration

positive decision has been issued as per Article 8, third-country nationals do not have a right to admission.64 Also a judgement of the ECJ seems to back this interpretation. In its judgement of September 10, 2014 the ECJ held that Member States are obliged, to admit to its territories third-country nationals fulfilling the conditions of the Student’s Directive 2004/114/EC.65 Although the Student’s Directive, unlike Article 7(1), does not require a ‘positive decision’ on admission according to the substantive criteria laid down in the Directive, the Court’s reasoning arguably may be applied to the Blue Card Directive. The ECJ relies in the first place on the wording of the provisions of the Directive which lead in its view to the conclusion that students have the right of admission if the general and specific conditions are met. The wording of Article 7 differs in so far, as unlike as in the Student’s Directive 2004/114/EC, a ‘positive decision’ with regard to Article 8 is required. Yet, Article 8 is similar to Articles 5 and 6 of the Student’s Directive 2004/114/EC. In the second place, the Court relies on the purpose of the Directive to further the mobility. This seems to be applicable as well to the Blue Card’s purpose to promote the mobility of highly qualified workers. Finally, the Court’s reference to the ‘more favourable conditions clause’ of Article 4(2) of the Student’s Directive 2004/114/EC applies equally to Article 4(2) of this Directive. It follows that the Member States’ discretion is limited to the fulfilment of the requirements of Article 8. If an application is accepted, the applicant will be provided with every facility necessary to obtain the requested visas (Article 7(1) subparagraph 2). ‘Every facility’ implies that the Member State issuing a positive decision should facilitate the acquisition of a visa either by granting access to the visa in the country of residence or by facilitating the acquisition of a visa by a representation abroad. In particular, a thirdcountry national who is lawfully in a given Member State should not be required to apply for a visa in his/her country of residence once the requirements for receiving a Blue Card have been examined (see also Article 10).

II. Validity of the Blue Card (Article 7(2)) 3

Article 7(2) provides that Member States shall set a standard term of validity for the EU Blue Card, which shall be comprised of a period between one and four years. The standard period is to be set by each Member State. This standard period applies to all applications in the respective Member State. Even if it is not expressively mentioned, this standard period applies to Blue Card renewals as well. If the work contract or a binding job offer66 covers a period shorter than the standard period set by the Member States, the Blue Card shall be issued or renewed for the duration of the work contract plus three months (second sentence of Article 7(2)). This applies during both the initial period of validity and the renewal of the Blue Card. However, this provision does not apply if the standard period is only one year and the work contract or the binding job offer is less than one year. If an original work contract does not meet the one-year requirement, the conditions of admission set out in Article 5(1)(a) have not been fulfilled and the application must be rejected.

64 See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-Card-Richtlinie 2009/50/EG und ihre Umsetzung in Deutschland (Nomos 2014), p. 138–140 and Wiesbrock, Legal Migration to the EU (Brill/Nijhoff 2010), p. 151. See also Bast, Aufenthaltsrecht und Migrationssteuerung (Mohr Siebeck 2011), p. 183 who acknowledges an individual right of admission. 65 ECJ, Ben Alaya, C-491/13, EU:C:2014:2187. 66 A binding job offer is only sufficient in cases where national law provides this option, see Article 5(1)(a).

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Part C VIII

III. Format of the Blue Card (Article 7(3)) The competent authorities of each Member State shall issue the Blue Card by using 4 the format provided in the Regulation (EC) No. 1030/2002.67 The Regulation (EC) No. 1030/2002 provides authorities with a uniform format that enables the Member States to ascertain information, in particular regarding the conditions under which a person is permitted to work.68 Member States shall indicate on the Blue Card the conditions for access to the labour market as set out in Article 12(1).69 This concerns in particular the question as to whether the Blue Card holder has restricted access to the labour market, or whether the Blue Card holder is granted treatment equal to nationals with regard to access to highly qualified employment (see also Article 12). Furthermore, Member States shall enter ‘EU Blue Card’ under the heading ‘type of permit’ on the Blue Card residence permit.

IV. Entitlements for the Blue Card holder (Article 7(4)) The Blue Card entitles the holder to enter, re-enter and stay in the territory of the 5 Member State that issued the EU Blue Card (Article 7(4)(a)). It further entitles the holder to the rights granted under the Directive. The right to enter and re-enter may also include the right to pass through other Member States. The Commission’s Proposal explicitly stated that the Blue Card holder should be entitled ‘passage through other Member States in order to exercise the rights’. This provision was deleted during Council negotiations. However, in as much as a Member State must apply the Schengen acquis in full and in accordance with Regulation (EC) No. 562/200670 and Article 21 of the Convention implementing the Schengen Agreement,71 a Blue Card holder should be allowed to enter into and move freely within the territory of another Member State for up to three months.72 Article 7(4) further entitles the Blue Card holder to the ‘rights recognised in this Directive’. This article refers to chapter IV ‘rights’ (Article 12–17). The rights granted under Articles 18 and 19 (regarding the right to move to another Member State) are, however, not considered under Article 7(4)(b). This is in line with the definition in Article 2(c), which defines the Blue Card (only) as an authorisation entitling its holder to reside and work in the territory of a Member State under the terms of this Directive. The right to move to another Member State requires that additional conditions be fulfilled (see Article 18 and 19).

67 Regulation (EC) No. 1030/2002 (OJ 2002 L 157/1) on uniform formats for residence permits for third-country nationals. 68 See also recital 13 of the preamble of the Directive. 69 See also point (a) 7.5–9 of the Annex of Regulation (EC) No. 1030/2002 (OJ 2002 L 157/1) on uniform formats for residence permits for third-country nationals. 70 Schengen Boarders Code Regulation (EC) No. 562/2006. 71 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, OJ 2000 L 239/19. 72 See also Peers, ‘Legislative Update: EC Immigration and Asylum Law Attracting and Deterring Labour Migration: The Blue Card and Employer Sanction Directives’, EJML 11 (2009), p. 394.

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Part C VIII Art. 8

Immigration

Article 8 Grounds for refusal 1. Member States shall reject an application for a EU Blue Card whenever the applicant does not meet the conditions set out in Article 5 or whenever the documents presented have been fraudulently acquired, or falsified or tampered with. 2. Before taking the decision on an application for an EU Blue Card, and when considering renewals or authorisations pursuant to Article 12(1) and (2) during the first two years of legal employment as an EU Blue Card holder, Member States may examine the situation of their labour market and apply their national procedures regarding the requirements for filling a vacancy. Member States may verify whether the concerned vacancy could not be filled by national or Community workforce, by third-country nationals lawfully resident in that Member State and already forming part of its labour market by virtue of Community or national law, or by EC long-term residents wishing to move to that Member State for highly qualified employment in accordance with Chapter III of Directive 2003/109/EC. 3. An application for an EU Blue Card may also be considered as inadmissible on the grounds of Article 6. 4. Member States may reject an application for an EU Blue Card in order to ensure ethical recruitment in sectors suffering from a lack of qualified workers in the countries of origin. 5. Member States may reject an application for an EU Blue Card if the employer has been sanctioned in conformity with national law for undeclared work and/or illegal employment. Content I. General remarks and drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Mandatory grounds for refusal (Article 8(1)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Facultative grounds for refusal (Article 8(2–5)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Labour market test and national procedures (Article 8(2)) . . . . . . . . . . . . . 2. Volumes of admission (Article 8(3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Ethical recruitment (Article 8(4)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Sanctioned employer (Article 8(5)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 4 5 6 7

I. General remarks and drafting history 1

Article 8 must be read together with Articles 6 (quotas) and 9 (grounds for withdrawal or non-renewal). These three provisions establish the mandatory and optional conditions for the refusal or withdrawal and non-renewal of the Blue Card that extend beyond the admission conditions set out in Article 5. Article 8 mentions the mandatory grounds for refusal (Article 8(1)) and the facultative grounds (Article 8(2–5)) for refusal. Together with Article 6, Article 8 should be considered to be an exhaustive list for all possible grounds for refusal.73 Such an interpretation of the article was also emphasized during Council negotiations.74 73 See also Peers, ‘Legislative Update: EC Immigration and Asylum Law Attracting and Deterring Labour Migration: The Blue Card and Employer Sanction Directives’, EJML 11 (2009), p. 395. The same applies for Article 9 regarding grounds for withdrawal or non-renewal. 74 See Council doc. 6051/08 of 28 February 2008, p. 12.

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Art. 8

Blue Card Directive 2009/50/EC

Part C VIII

II. Mandatory grounds for refusal (Article 8(1)) Article 8(1) provides that if the applicant does not meet the conditions set out under 2 Article 5, the application shall be rejected. The application shall also be rejected if the documents presented have been fraudulently acquired, falsified or tampered. ‘Fraudulently acquired’ refers to the act of acquiring the documents. A competent authority may issue the documents and they may therefore be authentic. However, the authority or person issuing the documents may have been deceived prior to issuing the document. The fraud must be the direct cause for the acquisition of the document. This may concern e. g. diplomas or certificates (see Article 2(h)). ‘Falsified’ refers to documents that appear to have been issued by another person or authority than the person or authority who actually produced the document concerned. The term ‘tampered with’ refers to documents that were manipulated afterwards. All of the grounds for refusal refer only to acts committed in the past. The wording of the article supports such an interpretation.75 Therefore, the reproach concerns primarily the fraudulent acquisition, the act of falsification or the manipulation of the document and not the act of using the document.

III. Facultative grounds for refusal (Article 8(2–5)) Articles 8(2–5) provide facultative grounds for the refusal of a Blue Card.

3

1. Labour market test and national procedures (Article 8(2)) During the first two years, Member States may require labour market tests and apply 4 their own national procedures when filling vacancies (see recital 7 of the preamble of the Directive). This also enables Member States to respect the principle of EU preference.76 According to the principle of EU preference, Member States may first verify if the vacancy cannot be filled by a national, an EU citizen or a third-country national who is lawfully residing in that Member State and already constitutes part of its labour market.77

2. Volumes of admission (Article 8(3)) An application may be considered inadmissible if the set quotas are already ex- 5 hausted in the respective Member State or if the profession concerned is in general excluded from admission (see above Article 6 MN 1). Contrary to Article 8(1)(4) and (5), Article 8(3) states that the application may not be rejected, but may be considered inadmissible. Inadmissibility means that an application will not be examined in substance. The procedural and substantive rules of the Directive that guide the examination of an application are thus not applicable.

3. Ethical recruitment (Article 8(4)) Article 8(4) must be read together with Article 3(3) and recital 22 of the preamble of 6 the Directive. Whereas persons are excluded if their type of employment is included in 75 See also the German wording: ‘wenn die vorgelegten Dokumente in betru ¨ gerischer Weise erworben wurden’. 76 Council Resolution, COM(2007) 637, p. 10. 77 See also Kuczynski/Solka, ‘Die Hochqualifiziertenrichtlinie’, Zeitschrift fu ¨ r Ausla¨nderrecht (2009), p. 225.

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Part C VIII Art. 9

Immigration

the list of professions under Article 3(3), Article 8(4) leaves it up to the discretion of the Member States to refuse additional persons already within the scope of this Directive from being granted a Blue Card. Article 8(4) does not provide specifications as to how to apply the provision in order to prevent recruitment in sectors suffering from a lack of qualified workers. However, recital 22 of the preamble mentions the health sector and the education sector. It further refers to the Council and Member States’ conclusions of 14 May 2007 on the European Programme for Action to tackle the critical shortage of health workers in developing countries (2007 to 2013).78 The reference to Council Conclusions may provide guidelines on the exercise of Member States’ discretion. This means that Member States do not dispose of unlimited discretion to apply the clause on an individual basis. Member States must decide about the countries and sectors that are concerned. This decision has to be communicated to the Commission and the other Member States (second sentence of Article 20(1)).

4. Sanctioned employer (Article 8(5)) 7

Member States may reject an application if the employer was sanctioned according to national law for undeclared work and/or illegal employment.79 Even if the wording of Article 8(5) does not refer explicitly to the Employers Sanctions Directive 2009/52/EC, one can assume that the term ‘illegal employment’ has to be interpreted according to the Employers Sanctions Directive 2009/52/EC80 as an employment of a third-country national not legally residing in the respective Member State.81 The term ‘undeclared work’, however, is not defined in the Employers Sanctions Directive 2009/52/EC.82 The term refers to employers who did not declare the work of their employees to the competent authorities. Unlike ‘illegal employment’, the previous illegal engagement of citizens of the respective Member State may also be covered by Article 8(5).

Article 9 Withdrawal or non-renewal of the EU Blue Card 1. Member States shall withdraw or refuse to renew an EU Blue Card issued on the basis of this Directive in the following cases: (a) when it has been fraudulently acquired, or has been falsified or tampered with; (b) wherever it appears that the holder did not meet or no longer meets the conditions for entry and residence laid down in this Directive or is residing for purposes other than that for which the holder was authorised to reside; (c) when the holder has not respected the limitations set out in Articles 12(1) and (2) and 13. 78 See Council and Member States’ conclusions of 14 May 2007 on the European Programme for Action to tackle the critical shortage of health workers in developing countries (2007 to 2013) in Council doc. 7189/07. For an extensive discussion of ethical recruitment and circular migration. See also Martı´n Asensio, ‘Die “Blue Card”-Richtlinie – eine Maßnahme der politischen Inkoha¨renz der EU im Interesse der Erreichung ihrer Ziele im Rahmen der EU-Entwicklungspolitik’, Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik (2010), p. 180–182. 79 The German version mentions ‘Schwarzarbeit und/oder illegaler Bescha ¨ftigung’. 80 See also Kuczynski/Solka, ‘Die Hochqualifiziertenrichtlinie’, Zeitschrift fu ¨ r Ausla¨nderrecht (2009), p. 225. 81 See Article 2(d) of the Employers Sanctions Directive 2009/52/EC. 82 However, the term undeclared work is used in recital 33 of the preamble of the Employers Sanctions Directive 2009/52/EC. There it states that the Employers Sanctions Directive 2009/52/EC should be seen as complementary measures to counter undeclared work and exploitation.

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Art. 9

Blue Card Directive 2009/50/EC

Part C VIII

2. The lack of communication pursuant to Article 12(2) second subparagraph and 13(4) shall not be considered to be a sufficient reason for withdrawing or not renewing the EU Blue Card if the holder can prove that the communication did not reach the competent authorities for a reason independent of the holder’s will. 3. Member States may withdraw or refuse to renew an EU Blue Card issued on the basis of this Directive in the following cases: (a) for reasons of public policy, public security or public health; (b) wherever the EU Blue Card holder does not have sufficient resources to maintain himself and, where applicable, the members of his family, without having recourse to the social assistance system of the Member State concerned. Member States shall evaluate these resources by reference to their nature and regularity and may take into account the level of minimum national wages and pensions as well as the number of family members of the person concerned. Such evaluation shall not take place during the period of unemployment referred to in Article 13; (c) if the person concerned has not communicated his address; (d) when the EU Blue Card holder applies for social assistance, provided that the appropriate written information has been provided to him in advance by the Member State concerned. Content I. General remarks and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Mandatory grounds for withdrawal or non-renewal (Article 9(1) and (2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. Fraudulently acquired, falsified or manipulated documents (Article 9(1)(a)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2. Non-fulfilment of conditions (Article 9(1)(b)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3. Non-respect of limitations (Article 9(1)(c) and (2)) . . . . . . . . . . . . . . . . . . . . . . 5 III. Facultative grounds for withdrawal or non-renewal (Article 9(3)). . . . . . . . 6 1. Reasons of public policy, security and health (Article 9(3)(a)) . . . . . . . . . 7 2. Absence of sufficient resources (Article 9(3)(b)) . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3. Non-communication of address (Article 9(3)(c)) . . . . . . . . . . . . . . . . . . . . . . . . . 9 4. Social assistance (Article 9(3)(d)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

I. General remarks and drafting history Article 9 introduces grounds for the withdrawal and non-renewal of a Blue Card. The 1 Directive does not explicitly address the question as to whether or not these terms are exhaustive. However, given that there exists no other grounds in the Directive for the withdrawal or non-renewal of a Blue Card, and Member States may only derogate in accordance with special provisions, the list from Article 9 should, by argumentum e contrario, be considered exhaustive.

II. Mandatory grounds for withdrawal or non-renewal (Article 9(1) and (2)) Article 9(1) presents the mandatory grounds for the withdrawal or non-renewal of a 2 Blue Card.

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Immigration

1. Fraudulently acquired, falsified or manipulated documents (Article 9(1)(a)) 3

The terms are identical with the terms in Article 8(1) (see also above Article 8 MN 2). Contrary to Article 8(1), Article 9(1)(a) refers to the reaction of authorities after the Blue Card is first issued.

2. Non-fulfilment of conditions (Article 9(1)(b)) 4

Article 9(1)(b) introduces two alternative conditions under which Member States shall withdraw or refuse to renew a Blue Card. First, it refers to a possible situation within which the holder did not meet or no longer meets the conditions for entry and residence. Second, it refers to a situation within which the Blue Card is to be withdrawn or not renewed because the Blue Card holder is residing in the Member State for purposes other than those for which he/she was authorised to reside in the territory. The first alternative refers to the admission conditions set out in Article 5. A somewhat wider interpretation includes the requirements of Article 3 describing the scope of the Directive under the term ‘conditions’. The wording, the drafting history and a comparative analysis between Articles 8 and 9 support an interpretation of the article according to which the second alternative of Article 9(1)(b) also refers to Article 3. Contrary to Article 8(1), which is similar in its structure to Article 9, Article 9(1)(b) does not refer in its wording exclusively to Article 5. By referring to the ‘conditions for entry and residence laid down in the Directive’, the wording in Article 9(1)(b) is wider than in Article 5. Furthermore, the Commission’s Proposal contained an explicit reference to Article 5 and was therefore identical to Article 8. This reference to Article 5, however, was deleted during Council negotiations.83 It thus now enables a wider interpretation including Article 3 as well. For cases in which, for example, the holder of a Blue Card marries an EU citizen and thus no longer fulfils the conditions set out in Article 3(2)(e), the Blue Card may be withdrawn or not renewed. It should be noted that, despite its wide wording, Article 9(1)(b) does not refer to the conditions set out in Article 6. Article 9(1)(b) requires that the ‘holder’ no longer fulfil the conditions. Article 6, however, does not concern the personal conditions of the holder of a Blue Card, but instead states an objective criterion. Furthermore, Article 6 concerns only the volumes of first admission. Therefore, Article 6 is not applicable in cases of a renewal. The second alternative of Article 9(1) provides that the Blue Card shall be withdrawn or not renewed when it appears that the holder is residing in a Member State for purposes other than those for which he or she was authorised to reside on the territory. The term ‘appears’ must be interpreted as meaning, ‘to turn out to be proven true’, and not as meaning, ‘to seem like’. For the latter, no evidence would be needed. The wording in other versions is much clearer. The German version states ‘wenn sich herausstellt’, and the Spanish version states ‘cuando se constate’, thus emphasizing that the conditions mentioned in Article 9(1)(b) must be facts.

3. Non-respect of limitations (Article 9(1)(c) and (2)) 5

Article 9(1)(c) refers to Article 12(1) and (2) and Article 13 and provides that the non-respect of the limitations set out in these articles constitutes grounds for the withdrawal or non-renewal of the Blue Card (see below Article 12 MN 2–7 and Article 13 MN 2–4).

83

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See Council doc. 10398/08 of 18 June 2008, p. 10 and Council doc. 11512/08 of 24 July 2008, p. 13.

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Art. 9

Blue Card Directive 2009/50/EC

Part C VIII

It must be taken into account that the second sentences of Article 12(1) and Article 12(2) are only minimum standard provisions (see Article 4(2)(b)). Member States may derogate. With regard to Article 13, it should be noted that, according to Article 13(4), the Blue Card holder is obliged to communicate the beginning of the period of unemployment. Article 9(2) states, however, that the lack of said communication shall not constitute grounds for the withdrawal or non-renewal of a Blue Card if the communication did not reach the authorities for a reason ‘independent of the holder’s will’. Article 13 is a minimum standard provision (see Article 4(1)(b)). Member States may derogate and adopt or retain more favourable provisions.

III. Facultative grounds for withdrawal or non-renewal (Article 9(3)) Article 9(3) introduces additional possible grounds for the withdrawal or non- 6 renewal of a Blue Card but leaves it to the Member States discretion whether or not to withdraw or non-renew the Blue Card under these conditions.

1. Reasons of public policy, security and health (Article 9(3)(a)) In the Directive, the terms ‘public order, public security and public health’ appear in 7 Article 9(3)(a) and Article 5(1)(f). While Article 9(3)(a) concerns the grounds for the withdrawal and non-renewal of a Blue Card, Article 5(1)(f) concerns admission conditions. Article 9(3)(a) provides for the right of the Member States to withdraw or refuse to renew an EU Blue Card for ‘reasons of public policy, public security or public health’. Contrary to Article 5(1)(f), which is a mandatory condition for admission, Member States have the discretion (‘may’) to withdraw or non-renew the Blue Card under Article 9(3)(a). The reference to ‘reasons’, rather than ‘threat’ (Article 5(1)(f)), seem to indicate a lower threshold for refusing admission than terminating residency. However, it would seem contradictory to first admit third-country nationals under specified conditions and then to withdraw the permission afterwards under easier conditions. For admission, Member States are given a wide discretion as to whether admission is considered contrary to public policy. Third-country nationals who have already received a residence permit have legitimate interests in maintaining their professional and personal ties to the host country. These differences must be reflected in a decision on non-renewal or termination of a residence permit. See also the interpretation above concerning Article 5 MN 8.

2. Absence of sufficient resources (Article 9(3)(b)) The Directive does not contain the ‘sufficient resources requirement’, which is 8 common in other directives concerning the admission of third-country nationals.84 Given that the third-country national already has to fulfil the salary criterion in Article 5(3), it was decided that no further ‘sufficient resources requirement’ was necessary to include in the Directive.85 However, to be able to offset a situation in which a third-country national is not able to maintain himself/herself and/or his/her family members without recourse to the respective social assistance system, Member States may act and withdraw or not renew a Blue Card. 84 See e. g. Article 7(1)(b), Article 10(b), Article 11(b) of the Students Directive 2004/114/EC and Article 6(2)(b), Article 13(2) of the Researchers Directive 2005/71/EC. 85 See Council doc. 6051/08 of 28 February 2008, p. 4 and Council doc. 9666/08 of 19 June 2008, p. 8.

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Immigration

Defining the term ‘sufficient resources’ is left to the Member States. Member States shall evaluate these resources by referring to their nature and regularity. Member States may also take into account the level of minimum national wages and pensions, as well as the number of family members concerned. Since a period of three months of unemployment does not justify withdrawing a Blue Card (Article 13), Member States shall not carry out an evaluation during this period. Article 13 is a minimum standard provision of which Member States may deviate. The period may thus be longer (see below Article 13 MN 2). In this context, the German version is misleading.86 Article 13 implies a mandatory exemption from Article 9(3)(b) and thus does not enable discretion. See also the French version (‘Cette e´valuation n’a pas lieu pendant la pe´riode de choˆmage’) or the Spanish version (‘Dicha evaluacio´n no tendra´ lugar durante el perı´odo de desempleo’). Article 9(3)(d) is lex specialis in cases where the applicant also applies for social assistance.

3. Non-communication of address (Article 9(3)(c)) 9

If Member States made use of the option to require the applicant to provide his/her address in the territory in accordance with Article 5(2), Member States may withdraw or not renew a Blue Card in cases where the applicant has not communicated his/her address.

4. Social assistance (Article 9(3)(d)) 10

Article 9(3)(d) must be considered together with Article 5(3) and Article 9(3)(b). Article 9(3)(d) addresses a case similar to Article 9(3)(b), but instead concerns the situation when an applicant applies for social assistance (see also above MN 8).

Article 10 Applications for admission 1. Member States shall determine whether applications for an EU Blue Card are to be made by the third-country national and/or by his employer. 2. The application shall be considered and examined either when the third-country national concerned is residing outside the territory of the Member State to which he wishes to be admitted or when he is already residing in that Member State as holder of a valid residence permit or national long-stay visa. 3. By way of derogation from paragraph 2, a Member State may accept, in accordance with its national law, an application submitted when the third-country national concerned is not in possession of a valid residence permit but is legally present in its territory. 4. By way of derogation from paragraph 2, a Member State may provide that an application can only be submitted from outside its territory, provided that such limitations, either for all the third-country nationals or for specific categories of third-country nationals, are already set out in the existing national law at the time of the adoption of this Directive.

86 According to the German version: ‘Diese Beurteilung sollte nicht wa ¨hrend der Phase der Arbeitslosigkeit nach Artikel 13 vorgenommen werden’.

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Art. 11

Blue Card Directive 2009/50/EC

Part C VIII

According to Article 10(1), Member States shall determine whether the application is 1 to be submitted by the third-country national and/or by his/her future employer. According to Article 10(2), the application must be submitted from outside the territory of the concerned Member State, or from the territory of the relevant Member State if the third-country national is already legally residing in that Member State as holder of a valid residence permit or long-stay visa. According to Article 10(3), a Member State may, by way of derogation, also allow an application from applicants legally on its territory. This may especially concern thirdcountry nationals in possession of a short-term visa or third-country nationals who entered into a Member State for a short-term stay without the obligation of a visa because the country of origin is on the EU visa’s ‘whitelist’.87 Article 10(4) provides for a possible derogation from Article 10(2). According to Article 10(4), Member States may also require that an application be submitted from outside of the territory of the Member State concerned, provided that such limitation already existed in the national law at the time of the adoption of the Directive.

Article 11 Procedural safeguards 1. The competent authorities of the Member States shall adopt a decision on the complete application for an EU Blue Card and notify the applicant in writing, in accordance with the notification procedures laid down in the national law of the Member State concerned, as soon as possible and at the latest within 90 days of the application being lodged. National law of the relevant Member State shall determine any consequence of a decision not having been taken by the end of the period provided for in the first subparagraph. 2. Where the information or documents supplied in support of the application are inadequate, the competent authorities shall notify the applicant of the additional information that is required and set a reasonable deadline for providing it. The period referred to in paragraph 1 shall be suspended until the authorities have received the additional information or documents required. If additional information or documents have not been provided within the deadline, the application may be rejected. 3. Any decision rejecting an application for an EU Blue Card, a decision not to renew or to withdraw an EU Blue Card, shall be notified in writing to the thirdcountry national concerned and, where relevant, to his employer in accordance with the notification procedures under the relevant national law and shall be open to legal challenge in the Member State concerned, in accordance with national law. The notification shall specify the reasons for the decision, the possible redress procedures available and the time limit for taking action. Content I. General remarks and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Procedural safeguards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2

87 Peers, ‘Legislative Update: EC Immigration and Asylum Law Attracting and Deterring Labour Migration: The Blue Card and Employer Sanction Directives’, EJML 11 (2009), p. 396.

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Part C VIII Art. 11

Immigration

I. General remarks and drafting history 1

Article 11 concerns procedural safeguards. However, the procedural provisions of Article 11 are only ‘minimum standards’. According to Article 4(2)(b), Member States may adopt or retain more favourable provisions concerning Article 11.

II. Procedural safeguards According to Article 11(1), the competent national authorities must decide on the application within at the latest 90 days. The decision must also be communicated to the applicant in writing. The procedure aside from the 90-day requirement and the writingform requirement is left to the Member States. It is also left up to the Member States to determine the consequences if the authorities do not abide by the 90 day requirement. The deadline for examining the application of a Blue Card does not include the time required to recognize professional qualifications or to issue a visa. 3 According to Article 11(2), the competent authorities shall notify the applicant if the provided information is insufficient and further information is needed. The term ‘and further information is needed’ could also mean further documents. The wording of the provision seems to oppose such an interpretation of the article, as only the second sentence of Article 11(2) uses the term ‘documents’. However, the provision is meant to help complete those applications that are insufficient. Therefore, the spirit and purpose of the article suggest that the term ‘and further information is needed’ also refers to missing documents. The authorities must set a reasonable deadline. The definition of the term ‘reasonable’ is left to the Member States. The 90-day period referred to in Article 11(1) shall be suspended during this time. If the applicant does not provide the requested information and documents within the indicated deadline, the application may be rejected. 4 According to Article 11(3), any decision by the authorities regarding the rejection of the application, or the withdrawal or non-renewal of the Blue Card must be made known to the third-country national. If the employer submitted the application in conformity with Article 10(1), the employer has to be notified as well (‘where relevant’). Notification must be in writing. The notification must also mention the reasons for the decision. 5 Decisions shall be open to legal challenge in the Member State concerned. It is unclear if the term ‘legal challenge’ refers to administrative procedures or if it requires that Blue Card holder can challenge the decision before a tribunal. The wording itself does not make any specifications and does not explicitly require that Blue Card holder can submit an effective remedy before a tribunal. The Commission’s Proposal explicitly required a ‘challenge before the courts of the Member States’. However, the reference to ‘courts’ was deleted during Council negotiations. The drafting history, therefore, supports an interpretation of the article according to which administrative procedures would also be sufficient. However, Article 47(1) of the CFR provides, ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal’. The Directive does not provide for an individual right of admission but it grants other individual rights (Article 11(1), Article 14 or Article 16). Thus, the term ‘legal challenge’ arguably encompasses also the right to an effective remedy before a tribunal.88 2

88 See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-Card-Richtlinie 2009/50/EG und ihre Umsetzung in Deutschland (Nomos 2014), p. 141–143.

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Art. 12

Blue Card Directive 2009/50/EC

Part C VIII

CHAPTER IV RIGHTS Article 12 Labour market access 1. For the first two years of legal employment in the Member State concerned as an EU Blue Card holder, access to the labour market for the person concerned shall be restricted to the exercise of paid employment activities which meet the conditions for admission set out in Article 5. After these first two years, Member States may grant the persons concerned equal treatment with nationals as regards access to highly qualified employment. 2. For the first two years of legal employment in the Member State concerned as an EU Blue Card holder, changes in employer shall be subject to the prior authorisation in writing of the competent authorities of the Member State of residence, in accordance with national procedures and within the time limits set out in Article 11(1). Modifications that affect the conditions for admission shall be subject to prior communication or, if provided for by national law, prior authorisation. After these first two years, where the Member State concerned does not make use of the possibility provided for in paragraph 1 regarding equal treatment, the person concerned shall, in accordance with national procedures, communicate changes that affect the conditions of Article 5 to the competent authorities of the Member State of residence. 3. Member States may retain restrictions on access to employment, provided such employment activities entail occasional involvement in the exercise of public authority and the responsibility for safeguarding the general interest of the State and where, in accordance with existing national or Community law, these activities are reserved to nationals. 4. Member States may retain restrictions on access to employment activities, in cases where, in accordance with existing national or Community law, these activities are reserved to nationals, Union citizens or EEA citizens. 5. This Article shall be applied without prejudice to the principle of Community preference as expressed in the relevant provisions of the Acts of Accession of 2003 and 2005, in particular with respect to the rights of nationals of the Member States concerned to access the labour market. Content I. General remarks and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Employment activities during and after the first two years (Article 12(1) and (2)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Restrictions on access to employment (Article 12(3) and 4)) . . . . . . . . . . . . . . IV. Principle of EU preference (Article 12(5)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 8 9

I. General remarks and drafting history Article 12 was changed significantly during Council negotiations. The Commission’s 1 Proposal provided that Member States should grant Blue Card holders treatment equal to nationals after the first two years of legal employment to establish an attractive

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Part C VIII Art. 12

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scheme for highly qualified workers.89 The final version, however, leaves it to the Member States to decide whether or not to grant equal treatment after these first two years.90 The Directive understands highly qualified workers to be a potential for the EU economy, but considers that rights should depend on the length of stay. Thus, the progressive integration of highly qualified workers into the labour market is intended.91 During the first two years, a Blue Card holder must respect several limitations. After this two-year period, and only if the relevant Member States grant equal treatment, Blue Card holders may have less restricted access to highly qualified employment.92 The twoyear limit was considered to be necessary to help prevent abuse of the system. Without any time limitation, the salary could be lowered shortly after admission is granted.93 Recital 15 of the preamble of the Directive makes clear that the legislator considered the principle of EU preference as well as the aim to avoid possible abuses of the system as major reasons why Member States are able to restrict the occupational mobility of a third-country, highly qualified worker for the initial period of legal employment in a Member State. The recital at the same time recognises that occupational and geographical mobility should be recognised as a primary mechanism for improving labour market efficiency, preventing skill shortages and offsetting regional imbalances. Thus, the mobility restriction within a Member State must be considered to be an exception for the implementation of the purposes laid down in the Directive rather than a general pattern of labour policy with regard to the employment of third-country nationals.

II. Employment activities during and after the first two years (Article 12(1) and (2)) 2

During the first two years of legal employment, the Blue Card holder is only permitted to exercise a paid employment activity that meets the conditions set out in Article 5 (first sentence of Article 12(1)). This means that Blue Card holders must fulfil the salary requirement set out in Article 5(3) among other prerequisites.94 The requirements set out in Article 5 are, therefore, not only relevant when applying for the Blue Card but also for access to employment. Unless a Member State decides to grant a thirdcountry national a residence and labour permit under national law rather than status as a Blue Card holder, a Member State may not derogate from the requirement set out in the first sentence of Article 12(1) as Article 4(2)(b) only allows Member Stats to derogate from the second sentence of Article 12(1). The term ‘legal employment’ in Article 12(1) refers to the period of employment and does not refer to the duration of residence. The wording of Article 12(1) does not specify whether ‘legal employment’ must be uninterrupted. The maintenance of legal employment over the course of two years implies a certain degree of integration into the labour market, which, under the Directive, can arguably only be established if the Blue Card holder maintains legal employment in an uninterrupted employment relationship for two full years. The two years period of Article 12(1) however pursues the aim to abolish restrictions in a 89

See Article 13(2) of the Commission Proposal, COM(2007) 637 final, p. 25. See second sentence of Article 12(1). 91 See Commission Proposal, COM(2007) 637 final, p. 10 and recital 15 of the preamble of the Directive. See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-Card-Richtlinie 2009/50/ EG und ihre Umsetzung in Deutschland (Nomos 2014), p. 182, Farahat, ‘We want you! But…Recruiting Migrants and Encouraging Transnational Migration Through Progessive Inclusion’, EJML 2009, p. 717. 92 See Commission Proposal, COM(2007) 637 final, p. 10. 93 See Council doc. 7642/08 of 3 April 2008, p. 2. 94 Member States may not derogate from this requirement set out in the first sentence of Article 12(1) as Article 4(2)(b) only allows Member Stats to derogate from the second sentence of Article 12(1). 90

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Art. 12

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Part C VIII

gradual way of those third-country nationals who have already held a Blue Card status for an employment period of two years. Since Article 13 explicitly provides that a temporary period of unemployment shall not constitute a reason to withdraw a Blue Card, temporary unemployment does not interrupt the status. This supports an interpretation of the article whereby the first two years of legal employment are counted irrespective of a temporary interruption of employment under Article 13 unless unemployment persists for more than three months or occurs more than once. According to the first sentence of the first subparagraph of Article 12(2), every 3 change in employer during the first two years is subject to prior written authorisation. The competent national authorities have to decide on the change within the 90 days set out in Article 11(1). The term ‘in accordance with national procedures’ means that, if there is a request to change employers, Member States have the right during the first two years to carry out a labour market test before issuing the authorisation.95 The first sentence of the first subparagraph of Article 12(2) is controversial96 as some Member States are bound by international legal obligations that grant more favourable provisions for migrant workers, namely by Article 8 No. 2 of the European Convention on the Legal Status of Migrant Workers, which provides the right to change an employer after one year without any further conditions.97 Due to the fact that Article 4(2)(b) allows more favourable provisions in respect to Article 12(2), Member States bound by other international obligations may, if there is a request to change employers, use the option provided in Article 4(2)(b) and waive the authorisation after one year. According to the second sentence of the first subparagraph of Article 12(2), every 4 change that may concern admission criteria (especially Article 5, e. g. the salary criterion) is subject to prior communication during the first two years. Even if the second sentence of the first subparagraph of Article 12(2) does not explicitly mention this in its wording, it follows from the structure of the provision that the initial two-year period of employment is intended. Changes that may concern admission criteria may also be subject to prior authorisation if provided by national law. The term ‘if provided by national law’ does not specify at which moment the national law must contain this alternative authorisation requirement.98 Contrary to other provisions in the Directive that explicitly refer to the past,99 the second sentence of the first subparagraph of Article 12(2) does not make this specification. Member States, therefore, may also introduce the prior authorisation requirement after the adoption and implementation of the Directive.100 The term ‘every change that may concern admission criteria’ raises the question as to whether prior communication or the authorisation requirements only apply in cases where the admission criteria are no longer fulfilled. Since it is the purpose of the provision to control the continuing compliance with admission conditions, every change must be reported which may have a potential influence on the admission criteria. A third-country national therefore is not dispensed from a reporting requirement if he/she 95

See Council doc. 7642/08 of 3 April 2008, p. 2. The provision was therefore also criticized by the European Economic and Social Committee, see point 4.7 of the Economic and Social Committee Opinion 2009/C 27/09 of 9 July 2009 (OJ 2009 C 27/108). 97 European Convention on the Legal Status of Migrant Workers, ETS No. 93, adopted on 24 November 1977, entered into force on 1 May 1983. The European Convention on the Legal Status of Migrant Workers has been ratified by Albania, France, Italy, Moldova, Norway, Netherlands, Portugal, Sweden, Spain, Turkey and Ukraine. Four other Member States: Belgium, Germany, Greece and Luxembourg have signed it. 98 See also the German version: ‘wenn dies nach einzelstaatlichem Recht vorgesehen ist’. 99 E. g. Article 12(3) and (4) refer to ‘existing’ law, see also Article 10(4) which refers to ‘existing national law at the moment of the adoption of the Directive’. 100 See also Wiesbrock, Legal Migration to the EU (Brill/Nijhoff 2010), p. 223. 96

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considers the change as irrelevant relating to the admission conditions. The reporting requirement therefore may be applicable as well in cases where the admission criteria are still fulfilled in spite of a change of the factual situation.101 5 After the first two years, Member States may grant the Blue Card holder treatment equal to nationals regarding access to highly qualified employment (second sentence of Article 12(1)). Equal treatment means that Blue Card holders no longer have to fulfil the requirements set out in Article 5. This also implies that the salary criterion set out in Article 5(3) is no longer applicable. However, Blue Card holders will still be limited to ‘highly qualified employment’, which is defined in Article 2(b) as the employment of a person who has a ‘higher professional qualification’ and is exercising a ‘paid’ employment activity. Also, it should be noted that even in cases where second Member States grant equal treatment regarding Article 14, Blue Card holders, in accordance with Article 18 (see below Article 18 MN 3), have to comply with the restrictions set out in Article 12(1) during the first two years of their legal employment if they move to a second Member State. Since equal access to highly qualified employment is optional, Member States may a maiore ad minus also grant Blue Card holders treatment that is less than fully equal to the treatment of nationals. Therefore, Member State may also differentiate between different types of professions, nationalities and/or Blue Card holders fulfilling certain integration conditions. There is no indication that Article 12(1) requires that the exercise of an option be generally and exclusively tied to the fulfilment of the initial two-year period. Additional requirements or conditions that must be fulfilled in order to be granted full equal treatment do not violate the Directive as long as the principles of non-discrimination are not violated (concerning those criteria absolutely prohibited, such as ethnic origin, religion etc.).102 6 If the concerned Member States do not grant Blue Card holders treatment equal to nationals after two years, Member States must nonetheless grant more than the restricted access provided to the Blue Card holder during the initial two-year period. This is because both the Directive and international obligations provide for improved treatment after the first two years. First, the Directive provides that after the first two years, even if equal treatment is not granted, Member States can no longer examine the situation of their labour market (first subparagraph of Article 8(2)). Also, the second subparagraph of Article 12(2) provides that changes that affect the conditions of Article 5 are (only) to be communicated after the first two years. Contrary to the first and second sentence of the first subparagraph of Article 12(2), the second subparagraph of Article 12(2) does not distinguish between a change in employer and other changes of admission conditions. The second subparagraph of Article 12(2) therefore refers to both the change of an employer and the change of admission conditions. Contrary to the first subparagraph of Article 12(2), no prior communication is requested. The second subparagraph of Article 12(2) allows – by argumentum e contrario – also a subsequent communication. Second, Article 8 No. 2 of the European Convention on the Legal Status of Migrant Workers103 and Article 14(a) of the Migrant Workers Convention104 provide 101 See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-Card-Richtlinie 2009/50/EG und ihre Umsetzung in Deutschland (Nomos 2014), p. 188–189. 102 See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-Card-Richtlinie 2009/50/EG und ihre Umsetzung in Deutschland (Nomos 2014), p. 191–193. 103 European Convention on the Legal Status of Migrant Workers, ETS No. 93, adopted on 24 November 1977, entered into force on 1 May 1983. 104 Migrant Workers Convention (No. 143), Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers, adopted 24 Jun 1975, entered into force on 9 December 1978.

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more favourable provisions for migrant workers – namely the right to change employer after one or two years respectively. Member States bound by these Conventions are obliged to waive the above-mentioned restrictions after one year or if they do not grant equal treatment according to the first sentence of Article 12(1) after two years of legal employment. The Directive does not provide for a formal declaration or legal provision stating 7 that the option of the second sentence of Article 12(1) has been exercised. It is, therefore, a matter of interpretation by the national legislation to decide whether equal treatment with regard to access to highly qualified employment is applicable. It will be primarily the task of national courts to decide whether national law does in fact provide for equal treatment while it is up to the ECJ to lay down the general criteria for the application of the clause. The existence of state or local law restricting the access of third-country nationals to highly qualified employment, however, cannot be taken as an indication that the option has not been used by the respective Member State if on the national level a decision has been made to grant equal treatment or if a Member State simply does not want to grant full equal treatment.

III. Restrictions on access to employment (Article 12(3) and 4)) According to Article(3), Member States may retain restrictions on access to employ- 8 ment where such employment activities entail ‘occasional involvement in the exercise of public authority and the responsibility for safeguarding the general interest of the State’ and where these activities are reserved to nationals according to existing EU law. The term ‘employment’ only includes employment in a paid capacity. See also the German version, which explicitly uses the term ‘unselbsta¨ndige Erwerbsta¨tigkeit’ (paid employment).The wording of the reservation clause is somewhat misleading. It is clearly not intended to cover only occasional involvement but also permanent involvement in the exercise of public authority. The phrase ‘exercise of public authority and the responsibility for safeguarding the general interest of the State’ is very similar to the one developed by the ECJ’s case law interpreting EU law restrictions on access to employment for EU citizens.105 Therefore, the ECJ’s criteria may be used as a guideline.106 Restrictions applicable under the exercise of the public authority clause of Article 12(3) are only admissible insofar as they existed at the time when the Directive was adopted. The Directive’s terminology does distinguish between those Member States determining or adopting measures and those retaining such measures. Therefore, it must be assumed that no new restrictions may be adopted. The same conclusion must be drawn from the terminology in Article 12(4), whereby Member States may retain restrictions on access to employment activities where these activities are reserved to nationals, EU citizens or EEA citizens. It is, however, not quite clear which restrictions the legislator had in mind when referring to existing national or community law. General restrictions on access to employment activities for thirdcountry nationals apply only with regard to the principle of EU preference. It is doubtful, however, whether such general restrictions on access exist beyond the specific provisions in the acts of accession of 2003 and 2005 mentioned under Article 12(5). By argument of a minore ad maius one may, however, conclude from such preferences that EU citizens and nationals must enjoy a right of prior access to the labour market. Thus, 105

Article 45(4) TFEU (ex. Article 39(4) TEC). See among others ECJ, Commission v Italy, C-225/85, EU:C:1987:284, ECJ, Commission v Greece, C290/94, EU:C:1996:265, para. 37, ECJ, Lawrie-Blum, C-66/85, EU:C:1986:284, para. 26. 106

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the provision would allow Member States to reserve certain categories of employment activities for nationals and EU citizens as well as for EEA citizens. The transposition of the provision, however, seems to include a determination to reserve specified categories of employment activities for nationals, EU citizens or EEA citizens.

IV. Principle of EU preference (Article 12(5)) 9

Article 12(5) ensures that even if after two years Member States grant equal treatment to Blue Card holders, those Member States have to respect the principle of EU preference as set out in the relevant provisions of the acts of accession of 16 April 2003 and 23 April 2005. Member States that restricted access to their labour market had to give preference over third-country nationals to nationals of the Member States that have acceded in 2004 and 2007.107 The accession treaties constitute primary law and prevail over secondary EU law.

Article 13 Temporary unemployment 1. Unemployment in itself shall not constitute a reason for withdrawing an EU Blue Card, unless the period of unemployment exceeds three consecutive months, or it occurs more than once during the period of validity of an EU Blue Card. 2. During the period referred to in paragraph 1, the EU Blue Card holder shall be allowed to seek and take up employment under the conditions set out in Article 12. 3. Member States shall allow the EU Blue Card holder to remain on their territory until the necessary authorisation pursuant to Article 12(2) has been granted or denied. The communication under Article 12(2) shall automatically end the period of unemployment. 4. The EU Blue Card holder shall communicate the beginning of the period of unemployment to the competent authorities of the Member State of residence, in accordance with the relevant national procedures. Content I. II. III. IV.

General remarks and drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Permitted period of unemployment (Article 13(1)). . . . . . . . . . . . . . . . . . . . . . . . . Conditions to seek and take up new employment (Article 13(2)). . . . . . . . Start and end of the period of unemployment (Article 13(3) and (4)) . .

1 2 3 4

I. General remarks and drafting history 1

Article 13 provides a system of control during a period of unemployment.108 In the Council the Commission’s Proposal on the consequences of temporary unemployment was amended to the effect that unemployment may occur only once during the period of validity of the Blue Card without any negative effects on the status of the Blue Card holder.109 107

See Council doc. 7642/08 of 3 April 2008, p. 5. See Council doc. 7642/08 of 3 April 2008, p. 6. 109 See Article 14(1) of the Commission’s Proposal, COM(2007) 637 final, p. 28 and Council doc. 10398/08 of 18 June 2008, p. 13. 108

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II. Permitted period of unemployment (Article 13(1)) According to Article 13(1), unemployment is not a reason to withdraw the Blue 2 Card110 unless the period of unemployment exceeds three months or unemployment occurs more than once during the period of validity of the Blue Card. The provision may raise issues of compatibility as some Member States are bound by other international legal obligations that provide for more favourable provisions in cases of unemployment. Article 9 No. 4 of the European Convention on the Legal Status of Migrant Workers provides migrant workers with the right to find a new job within five months.111 The provision was therefore criticized by the European Economic and Social Committee.112 However, due to the fact that Article 4(2)(b) allows more favourable provisions as per Article 13, Member States bound by international treaty obligations may use the option and grant more favourable provisions in cases of unemployment.113

III. Conditions to seek and take up new employment (Article 13(2)) According to Article 13(2), the Blue Card holder may search for another employ- 3 ment during the period of unemployment. The Blue Card holder has to respect the conditions set out under Article 12. The conditions therefore depend on the length of stay114 as, after the first two years, Blue Card holders may enjoy treatment equal to nationals regarding access to work (see Article 12(1)).

IV. Start and end of the period of unemployment (Article 13(3) and (4)) According to Article 13(3), the Blue Card holder is allowed to remain on the 4 territory until the necessary authorisation has been granted or denied as per Article 12(2). The right to remain on the territory does not affect a decision to grant suspensive effect during an appeal procedure on the lawfulness of an administrative decision regarding the withdrawal of a Blue Card or regarding a denied authorisation to change an employer. As long as the person concerned has not been granted the relevant authorisation, he/she cannot work. After two years, and if Member States do not grant equal treatment with nationals according to Article 12(1), the communication provided in the second subparagraph of Article 12(2) shall end the period of unemployment. According to Article 13(4), the Blue Card holder has to communicate the beginning of the period of unemployment in accordance with national procedures.

110 The non-renewal of the Blue Card is not mentioned in Article 13(1). However, Article 9(1)(c), which refers to Article 13, regards both: withdrawal and non-renewal. 111 European Convention on the Legal Status of Migrant Workers, ETS No. 93, adopted on 24 November 1977, entered into force on 1 May 1983. The European Convention on the Legal Status of Migrant Workers has been ratified by Albania, France, Italy, Moldova, Norway, Netherlands, Portugal, Sweden, Spain, Turkey and Ukraine. Four other Member States: Belgium, Germany, Greece and Luxembourg have signed it. 112 See point 4.7 of the Economic and Social Committee Opinion 2009/C 27/09 of 9 July 2009 (OJ 2009 L 27/108). 113 See also Council doc. 11512/08 of 24 July 2008, p. 18 and Council doc. 12320/08 of 1 August 2008, p. 15. 114 See Commission Proposal, COM(2007) 637 final, p. 10.

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Immigration

Article 14 Equal treatment 1. EU Blue Card holders shall enjoy equal treatment with nationals of the Member State issuing the Blue Card, as regards: (a) working conditions, including pay and dismissal, as well as health and safety requirements 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) provisions in national law regarding the branches of social security as defined in Regulation (EEC) No 1408/71. The special provisions in the Annex to Regulation (EC) No 859/2003 shall apply accordingly; (f) without prejudice to existing bilateral agreements, payment of income-related acquired statutory pensions in respect of old age, at the rate applied by virtue of the law of the debtor Member State(s) when moving to a third country; (g) access to goods and services and the supply of goods and services made available to the public, including procedures for obtaining housing, as well as information and counselling services afforded by employment offices; (h) free access to the entire territory of the Member State concerned, within the limits provided for by national law. 2. With respect to paragraph 1(c) and (g) the Member State concerned may restrict equal treatment as regards study and maintenance grants and loans or other grants and loans regarding secondary and higher education and vocational training, and procedures for obtaining housing. With respect to paragraph 1(c): (a) access to university and post-secondary education may be subject to specific prerequisites in accordance with national law; (b) the Member State concerned may restrict equal treatment to cases where the registered or usual place of residence of the EU Blue Card holder, or that of the family member for whom benefits are claimed, lies within its territory. Paragraph 1(g) shall be without prejudice to the freedom of contract in accordance with Community and national law. 3. The right to equal treatment as laid down in paragraph 1 shall be without prejudice to the right of the Member State to withdraw or to refuse to renew the EU Blue Card in accordance with Article 9. 4. When the EU Blue Card holder moves to a second Member State in accordance with Article 18 and a positive decision on the issuing of an EU Blue Card has not yet been taken, Member States may limit equal treatment in the areas listed in paragraph 1, with the exception of 1(b) and (d). If, during this period, Member States allow the applicant to work, equal treatment with nationals of the second Member State in all areas of paragraph 1 shall be granted.

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Content I. General remarks and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Equal treatment (Article 14(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Working conditions (Article 14(1)(a)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Freedom of association (Article 14(1)(b)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Education and vocational training (Article 14(1)(c)) . . . . . . . . . . . . . . . . . . . . . 4. Recognition of diplomas (Article 14(1)(d)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Access to social security (Article 14(1)(e)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Payment of pensions (Article 14(1)(f)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. Access to goods and services (Article 14(1)(g)) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. Access to national territory (Article 14(1)(h)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Restrictions (Article 14(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Without prejudice to withdraw or to refuse to renew Blue Card (Article 14(3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Equal treatment in a second Member State (Article 14(4)) . . . . . . . . . . . . . . . .

1 2 3 4 5 6 7 8 9 10 11 12 13

I. General remarks and drafting history In general, EU law does not provide for third-country nationals to receive treatment 1 rights equal to EU citizens, nationals or other third-country nationals.115 Granting equal socio-economic rights, however, was considered crucial in order to make the EU more attractive to highly qualified workers from around the world.116 Article 14 defines the areas in which equal treatment must be granted. All rights granted on the basis of equal treatment can only be exercised during the period of validity of the Blue Card.117 Compared with other directives118, the Blue Card Directive has extended the scope of traditional equal treatment provisions to include specific socio-economic rights.119 Still, Article 14 is less extensive than was suggested by the Commission, which had proposed to also grant equal treatment concerning social assistance120 and tax benefits.121 The rejection of the Commission’s Proposal clearly indicates an unwillingness to grant a general right of access to social benefits within the social assistance schemes of Member States.

II. Equal treatment (Article 14(1)) Article 14(1) only grants treatment equal to that of nationals and not of EU-citizens 2 (as envisaged in Tampere) or other third-country nationals (as in the Family Reunification Directive 2003/86/EC).122 Member States have to grant equal treatment in the first and in the second Member State. Exceptions are only possible if the second Member State did not decide on the application of the Blue Card. Article 14 is a minimum standard provision. The list in Article 14(1) is not exhaustive. Compared with Article 14, Article 4(2)(b) allows Member States to grant more favourable conditions. 115 See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-Card-Richtlinie 2009/50/EG und ihre Umsetzung in Deutschland (Nomos 2014), p. 154–157. 116 Recital 7 of the preamble of the Directive. 117 Council doc. 8249/08 of 8 May 2008, p. 28. 118 See e. g. Article 12 of the Researchers Directive 2005/71/EC), Article 11 of the Long Term Residents Directive 2003/109/EC. 119 See e. g. Article 14(1)(f). 120 See Article 15(1)(f) of the Commission Proposal, COM(2007) 637 final, p. 29. 121 See Article 15(1)(h) of the Commission Proposal, COM(2007) 637 final, p. 29. 122 Article 14(1) of the Family Reunification Directive 2003/86/EC. See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-Card-Richtlinie 2009/50/EG und ihre Umsetzung in Deutschland (Nomos 2014), p. 154–157.

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1. Working conditions (Article 14(1)(a)) 3

According to Article 14(1)(a), a Blue Card holder shall enjoy equal treatment with regard to working conditions. The provision demands exemplary pay and dismissal, as well as health and safety requirements at the workplace. Other aspects may include working hours or holiday entitlements. The term ‘working conditions’ comprises all social advantages granted by law or by collective agreements attached to the contract of employment. However, unlike the ECJ’s jurisprudence on the term ‘social advantages’ in Article 7(2) of the Regulation (EU) No 492/2011123 for EU citizens, the term cannot be extended beyond the conditions, rights and advantages attached to a contract of employment. With regards to social advantages, the ECJ has relied upon the aims and intentions of the EU rules on freedom of movement for workers to develop a concept of equal treatment that embraces social benefits irrespective of a connection to employment. These advantages may include, for example, reduced fares for large families.124 The context of Article 14(1)(a) and its wording, which is based upon a distinction between different areas of equal treatment, demonstrate that Article 14(1)(a) does not contain a similarly comprehensive concept of equal treatment covering all direct or indirect social advantages irrespective of an attachment to an employment contract. Enjoyment of equal working conditions establishes duties for the Member States as well as for private employers. Member States, therefore, have to transpose Article 14(1)(a) so that Blue Card holders working for private employers can claim their rights to equal treatment before national courts.

2. Freedom of association (Article 14(1)(b)) 4

Article 14(b) states that Blue Card holders should enjoy equal treatment with regard to the freedom of association and affiliation and to membership of any organisation representing workers/employers or whose members are engaged in a specific occupation. This includes the benefits conferred by such organisations. This right is without prejudice to the national provisions on public policy and public security. Public policy or public security considerations may restrict the freedoms mentioned in Article 14(1)(b). Policy considerations may justify restrictions on association or affiliation of foreigners entrusted with the exercise of public functions. Public security may be affected if freedom of association is claimed by organisations whose functioning may affect particular security considerations.

3. Education and vocational training (Article 14(1)(c)) 5

Article 14(1)(c) grants Blue Card holders equal treatment with regard to education and vocational training. This right also includes tuition fees at schools and universities, study and maintenance grants or loans, or other grants and loans regarding secondary and higher education and vocational training (see first subparagraph of Article 14(2)).125 Article 14(1)(c), however, does not cover measures in the field of vocational training 123

Regulation (EU) No 492/2011 (OJ 2011 L 141/1) on free movement of workers. ECJ, Christini, C-32/75, EU:C:1975:120, para. 13. 125 Also, the Commission underlined that in order to define the terms in Article 14, the explanations in the Explanatory Memorandum of the Proposal for the Single Permit Directive 2011/98/EU may help, due to the fact that several terms are in its wording identical and a coherent and parallel interpretation is intended, see Explanatory Memorandum, Article 12 of the Commission’s Proposal for the Single Permit Directive 2011/98/EU, COM (2007) 638 final, p. 10, 11. See also Council doc. 8249/08 of 8 May 2008, p. 31. 124

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that are covered under social assistance schemes.126 Member States may restrict equal treatment with regard to Article 14(c) (see below Article 14 MN 11).

4. Recognition of diplomas (Article 14(1)(d)) This provision has to be read together with Article 5(1)(b). Unlike Article 5(1)(b), 6 this provision applies to the moment when a person becomes a holder of a Blue Card and not to the moment when a person submits an application for a Blue Card. Also, unlike Article 14(1)(d), Article 5(1) distinguishes between regulated and unregulated professions. Finally, contrary to Article 5(1)(b), Article 14(1)(d) provides for treatment equal to nationals and not to EU citizens. Article 14(1)(d) provides for equal treatment with nationals with regard to diplomas, certificates and other professional qualifications in accordance with the relevant national procedures. Regarding regulated professions, diploma and certificates in possession of thirdcountry nationals obtained in another EU Member State must be recognized under the conditions of Directive 2005/36/EC.127 Directive 2005/36/EC applies to ‘all nationals of a Member State wishing to pursue a regulated profession in a Member State’.128 As Article 14(1)(d) provides for treatment equal to nationals, Blue Card holders may also fall into the scope of the Directive 2005/36/EC.129 With respect to diploma obtained in an third country, the situation is different, since equal treatment with nationals does not imply recognition. Regarding regulated professions, diplomas, certificates and other professional qualifications obtained in third countries, Directive 2005/36/EC provides that such documents may be recognized by a Member State if the holder of the diploma, certificate or professional qualification ‘has three years’ professional experience in the profession concerned on the territory of the Member State’ that recognises the document. The Directive 2005/36/EC does not provide for other recognition procedures if these conditions are not met. Also, the jurisprudence of the ECJ as established during the Hocsman case does not apply in such cases as there is no cross-border element if a third-country national with a third-country diploma enters a Member State directly from outside the EU.130 However, Member States may recognize such documents according to the procedures set out under national law.131 The result, which is that Blue Card holders have less extensive rights regarding the recognition of their diplomas, certificates and other professional qualifications than when applying for a Blue Card (Article 5(1)(b)), seems to give a different answer. However, the result is due to the fact that, regarding equal treatment rights, a coherent and parallel interpretation with other directives was intended, such as with the Single Permit Directive 2011/98/EU.132 Also, it should be noted that the practical relevance of Article 14(1)(d) for the Blue Card holder might be limited. If a Blue Card holder applies for another job, the more favourable provision of Article 5(1)(b) would apply. Article 14(1)(d) might be relevant only for the less realistic situation in which a Blue Card holder would like to have additional diplomas recognized in order to study or exercise 126

See also recital 17 of the preamble of the Directive. Directive 2005/36/EC (OJ 2005 L 255/22) on the recognition of professional qualifications. 128 Article 2(1) of the Directive 2005/36/EC (OJ 2005 L 255/22) on the recognition of professional qualifications. 129 See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-Card-Richtlinie 2009/50/EG und ihre Umsetzung in Deutschland (Nomos 2014), p. 165–166. 130 ECJ, Hocsman, C-238/98, EU:C:2000:440, para. 37. See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-Card-Richtlinie 2009/50/EG und ihre Umsetzung in Deutschland (Nomos 2014), p. 167–168. 131 See also recital 10 of the preamble of the Directive. 132 See Council doc. 8249/08 of 8 May 2008, p. 31, footnote 98. 127

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an additional employment that is not considered a highly qualified employment according to the Blue Card Directive. As these situations do not enable Blue Card holders to exercise a highly qualified employment according to the Blue Card Directive, less favourable treatment (similar to other Directives Single Permit Directive 2011/98/ EU) does not seem to contradict Article 5(1)(b).

5. Access to social security (Article 14(1)(e)) 7

Similar to Article 12 of the Researchers’ Directive 2005/71/EC and Article 11 of the Long Term Residents’ Directive 2003/109/EC, the Blue Card Directive also provides for equal treatment with regard to accessing social security in Article 14(1)(e). Article 14(1)(e) grants Blue Card holders equal treatment with regard to the branches of social security as defined in Regulation (EEC) No. 1408/71133 (replaced with Regulation (EC) No. 883/2004134). In addition, Regulation (EEC) No. 859/2003, which extended the provisions of the Regulation (EEC) No. 1408/71 to third-country nationals in a cross-border situation, was replaced by Regulation (EU) No. 1231/2010.135 Article 3 of Regulation (EC) No. 883/2004 mentions the social security branches (like the previous Regulation (EEC) No. 1408/71) in which EU citizens, stateless persons, refugees or their family members are eligible to receive equal treatment. Article 1 of Regulation (EU) No. 1231/2010 extends these rights (like the previous Regulation (EC) No. 859/2003) to third-country nationals who are legally residing in the EU and who are in a cross-border situation. Article 14(1)(e) provides an exemption from the crossborder requirement and extends the provisions of Regulation (EU) No. 1231/2010 so that Blue Card holders who are not in a cross-border situation may profit from these rights. However, Article 14(1)(e) does not grant rights regarding situations that lie outside the scope of EU law, such as for family members residing in a third country.136 The reference to the branches of social security as defined in Regulation (EC) No. 883/ 2004 (before EC Regulation (EEC) No. 1408/71) does not require adherence to a contribution-based social security system since equal treatment to social benefits under the regulations according to the case law of the ECJ is not dependent upon contributions but only upon the attribution of a particular social benefit to one of the branches of social security defined in Article 3 of Regulation (EC) No. 883/2004 (before Article 4 of the Regulation (EEC) No. 1408/71).137 Article 14(1)(e) only applies as long as the Blue Card holder legally resides in the Member State (‘holder of a Blue Card’). This might also be applicable to temporary unemployment as long as the restrictions set out in Article 13 are met and no reasons to withdraw the Blue Card are given (Article 9).

6. Payment of pensions (Article 14(1)(f)) 8

Several rights granted in Article 14 are similar to other directives. However, in as much as the Directive was the first to address the issue of legal labour migration, the right granted under Article 14(1)(f) was new.138 It made bilateral agreements with 133 Article 4 of the Regulation (EEC) No. 1408/71 (OJ 1971 L 149/2) on the application of social security schemes to employed persons. See also recital 18 of the preamble of the Directive and Council doc. 8249/08 of 8 May 2008, p. 29, footnote. 94. 134 Regulation (EC) No. 883/2004 (OJ 2004 L 166) on the coordination of social security systems. 135 Regulation (EU) No. 1231/2010 (OJ 2010 L 344/1) extending Regulation (EC) No. 883/2004 and Regulation (EC) No 987/2009 to nationals of third countries who are not already covered by these Regulations. 136 Recital 18 of the preamble of the Directive. 137 ECJ, Hoever and Zachow, C-245/94, EU:C:1996:379. 138 See Kuczynski/Solka, ‘Die Hochqualifiziertenrichtlinie’, Zeitschrift fu ¨ r Ausla¨nderrecht (2009), p. 227.

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respective third countries superfluous. According to Article(1)(f), a Blue Card holder shall enjoy treatment equal to nationals with regard to the payment of income-related acquired statutory pensions in respect of old age at the rate applied by virtue of the law of the respective debtor Member State when moving to a third country. Article 14(1)(f) uses the plural form (‘Member State(s)’) and makes clear that pension rights might also be accumulated in several Member States. The term ‘income-related’ means that the pension must only be based on work. This right is without prejudice to existing bilateral agreements. The effective implementation and enforcement of Article 14(1)(f) is important. The ECHR held that the ‘right to a pension is not, as such, guaranteed by the ECHR. However, according to the case-law of the Convention institutions, the right to a pension which is based on employment can, in certain circumstances, be assimilated to a property right’.139

7. Access to goods and services (Article 14(1)(g)) This provision is similar to other legal migration directives, such as Article 11 of the 9 Long Term Residents’ Directive 2003/109/EC or Article 12 of the Researchers’ Directive 2005/71/EC. Equal treatment is provided in Article 14(1)(g) with regard to access to goods and services made available to the public. This includes also procedures for obtaining housing. The term ‘procedures’ makes clear that Blue Card holders should not enjoy the same equal treatment rights as workers who are EU nationals. According to Article 9 of the Regulation (EU) No 492/2011140 a ‘worker who is a national of a Member State and who is employed in the territory of another Member State shall enjoy all the rights and benefits accorded to national workers in matters of housing’. The term ‘housing’ arguably applies to both public and private-sector housing. The drafting history of the Directive provides support for such an interpretation. Regarding equal treatment rights, a coherent and parallel interpretation with other directives, such as with the Single Permit Directive 2011/98/EU, was intended. During Council negotiations, it was underlined that the explanations in the Explanatory Memorandum of the Proposal on the Single Permit Directive 2011/98/EU may be used to define the terms in Article 14 on the assumption that several terms are worded similarly.141 In its Explanatory Memorandum, the Proposal addresses both public and private-sector housing. However, Member States may restrict equal treatment with regard to Article 14(1)(g), see Article 14(2). Article 14(1)(g) also grants Blue Card Holders equal treatment with regard to the information and counselling services afforded by employment offices. Contrary to the Commission’s Proposal, the final version of Article 14(1)(g) no longer grants ‘assistance’ from the employment offices.

8. Access to national territory (Article 14(1)(h)) According to Article 14(1)(h) Blue Card holders shall enjoy equal treatment with 10 regard to free access to the entire territory of the Member State concerned. The right to free access to the territory is already granted under Article 2 of the 4th Protocol of the ECHR. Article 14(1)(h), therefore, only has limited practical relevance.142 139

ECtHR, Judgment of 3 March 2011, No. 57028/00, Klein v Austria, para 42. Regulation (EU) No 492/2011 (OJ 2011 L 141/1) on free movement of workers. 141 See Commission Proposal on the Single Permit Directive 2011/98/EU, COM (2007) 638 final. The Commission also underlined as well that Blue Card holders in principle should not be eligible for public housing, see also Council doc. 8249/08 of 8 May 2008, p. 31, footnote 98. 142 See also, Halleskov, ‘The long-Term Residents Directive: A Fulfilment of the Tampere Objective of Near-Equality?’, EJML 7 (2005), p. 181. 140

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III. Restrictions (Article 14(2)) 11

Equal treatment may be restricted with regard to grants and loans (Article 14(1)(c)) or procedures for obtaining housing (Article 14(1)(g)). According to the Commission, these are not rights to which the worker would be entitled on the basis of his/her contributions.143 With regard to Article 14(1)(c), Member States may restrict access to university and post-secondary education (Article 14(2)(a)). The wording in Article 14(2)(a) is vague and does not specify which restrictions are meant. Contrary to the Commission’s Proposal, which allowed Member States to restrict rights under Article 14(1)(c) for cases where the holder of the Blue Card has been staying or has the right to stay in its territory for at least three years, the Directive no longer uses the duration of stay in the respective Member State as criterion. Member States, however, do not have the right to fully deprive Blue Card holders of the right to equal treatment granted under Article 14(1)(c). Therefore, prerequisites limiting access to university or post-education may not completely eradicate the right of access set out in Article 14(1)(c). Member States may adopt or maintain contingents or tuition fees as long as access to university or post-education to Blue Card holders is de facto not excluded.144 As per Article 14(1)(c), Member States may also limit equal treatment rights with regard to grants and loans (first sentence of Article 14(2) and Article 14(2)(b)). Like the restrictions set out in Article 14(2)(a)), the first sentences of Article 14(2) and Article 14(2)(b) also do not specify which restriction are meant. Article 14(2)(b) is unclear in its inclusion of family members (‘or that of the family member for whom benefits are claimed’). It could be argued that equal treatment rights with regard to study and maintenance grants, study and maintenance loans or other grants or loans regarding secondary and higher education and vocational training also apply to family members. The wording in Article 14(1)(b) only refers to ‘benefits’ and seems to include family members only with regard to study and maintenance grants, study and maintenance loans or other grants or loans regarding secondary and higher education and vocational training and not to access to university or post-education. With regard to equal treatment concerning procedures for obtaining housing as is granted under Article 14(1)(g), Member States may restrict this right. The Commission’s Proposal contained the term ‘public housing’ in its Article 14(2). The Commission’s Proposal therefore limited the right of Member States to restrict equal treatment only in the sector of public housing. In the subsequent negotiations, the term ‘public’ housing was deleted.145 The restriction concerns therefore both public and private-sector housing. Moreover, the second subparagraph of Article 14(2) provides that this right is without prejudice to the freedom of contract in accordance with EU and national law.

IV. Without prejudice to withdraw or to refuse to renew Blue Card (Article 14(3)) 12

Article 14(3) underscores that the right to equal treatment is without prejudice to the Member States to withdraw or to refuse to renew the Blue Card in accordance 143

Commission Proposal, COM(2007) 637 final, p. 11. See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-Card-Richtlinie 2009/50/EG und ihre Umsetzung in Deutschland (Nomos 2014), p. 163. 145 See Council doc. 8875/08 of 29 April 2008, p. 16. 144

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with Article 9. Article 14(3) only iterates the right of the Member States, which is already granted by Article 9, and does not provide new regulations. However, Member States insisted on introducing this provision in order to prevent a possible alternate interpretation.146

V. Equal treatment in a second Member State (Article 14(4)) In order to address the issue of the ‘interim period’, when the Blue Card holder 13 moves from the first to the second Member State and has not been issued the Blue Card in the second Member State, Article 14(4) was inserted during Council negotiations.147 According to Article 14(4), Member States may limit the rights under Article 14 whilst the Blue Card is awaiting a positive decision. This means that Member States may limit the rights granted under Article 14 except for the freedom of association and affiliation and membership of an organisation148 and the recognition of diplomas, certificates and other professional qualifications.149 However, if Member States allow the applicant to work until a positive decision is made,150 equal treatment in all areas of Article 14(1) shall be granted.151

Article 15 Family members 1. Directive 2003/86/EC shall apply with the derogations laid down in this Article. 2. By way of derogation from Articles 3(1) and 8 of Directive 2003/86/EC, family reunification shall not be made dependent on the requirement of the EU Blue Card holder having reasonable prospects of obtaining the right of permanent residence and having a minimum period of residence. 3. By way of derogation from the last subparagraph of Article 4(1) and Article 7(2) of Directive 2003/86/EC, the integration conditions and measures referred to therein may only be applied 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, where the conditions for family reunification are fulfilled, at the latest within six months from the date on which the application was lodged. 5. By way of derogation from Article 13(2) and (3) of Directive 2003/86/EC, the duration of validity of the residence permits of family members shall be the same as that of the residence permits issued to the EU Blue Card holder insofar as the period of validity of their travel documents allows it.

146 According to Kuczynski/Solka ‘Die Hochqualifiziertenrichtlinie’, Zeitschrift fu ¨ r Ausla¨nderrecht (2009), p. 219–229 this has to be seen in the context with the Gattoussi judgment of the ECJ. The ECJ deduced in this judgment a residence permit from a non-discrimination principle. See ECJ, Gattoussi, C97/05, EU:C:2006:780, para. 39 et seqqsee, see also Hailbronner, ‘“Gattoussi/Stadt Ru¨sselsheim” – Ein neuer Schritt des EuGH zur Entmu¨ndigung der Mitgliedstaaten?’, Neue Zeitschrift fu¨r Verwaltungsrecht (2007), p. 415 et seqq. 147 Council doc. 13009/08 of 15 September 2008, p. 18. 148 See Article 14(1)(b). 149 See Article 14(1)(d). 150 See second sentence of Article 18(2). 151 See second sentence of Article 14(4).

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6. By way of derogation from the second sentence of Article 14(2) of Directive 2003/86/EC, Member States shall not apply any time limit in respect of access to the labour market. This paragraph is applicable from 19 December 2011. 7. By way of derogation to Article 15(1) of Directive 2003/86/EC, for the purposes of calculation of the five years of residence required for the acquisition of an autonomous residence permit, residence in different Member States may be cumulated. 8. If Member States have recourse to the option provided for in paragraph 7, the provisions set out in Article 16 of this Directive in respect of accumulation of periods of residence in different Member States by the EU Blue Card holder shall apply mutatis mutandis. Content I. II. III. IV. V. VI. VII.

General remarks and drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Favourable conditions for the sponsor (Article 15(2)) . . . . . . . . . . . . . . . . . . . . . Favourable integration measures and conditions (Article 15(3)) . . . . . . . . . Favourable processing time (Article 15(4)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duration of validity of the residence permit (Article 15(5)). . . . . . . . . . . . . . . Favourable access to employment (Article 15(6)) . . . . . . . . . . . . . . . . . . . . . . . . . . . Time periods in different Member States of family members (Article 15(7) and (8)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 4 5 6 8

I. General remarks and drafting history 1

Article 15 contains a series of derogations from the requirements of the Family Reunification Directive 2003/86/EC. More favourable conditions for family reunification for Blue Card holders were considered important to attract highly qualified thirdcountry workers.152 The family reunion privileges of Blue Card holders were criticized for establishing a higher class of migrants.153 The Blue Card Directive differentiates between the time family reunification takes place. Article 15 regulates family reunification in a first Member State, Article 19 contains provisions for the family reunification in a second Member State. Article 16(6) provides that the derogations of Article 15 also apply to family members of a Blue Card holder who obtained the status of a long-term resident as per the Long Term Residents’ Directive 2003/109/EC. The term ‘family members’ defined in Article 2(f), refers to the Family Reunification Directive 2003/86/ EC and thus includes only the nuclear family concept. The derogations of the Family Reunification Directive 2003/86/EC provided by Article 15 are mandatory for Member States. The only exemption is Article 15(7), which provides that for the calculation of the five years of residence required for the acquisition of an autonomous residence permit, residence in different Member States may be accumulated.

II. Favourable conditions for the sponsor (Article 15(2)) 2

The purpose of the derogation clause of Article 15(2) is to allow the families of Blue Card holders to reunite irrespective of the planned duration of their residence and the time of lawful residence before the reunion takes place. Article 15(2) deviates from the requirement of Article 3(1) of the Family Reunification Directive 2003/86/EC that the 152 153

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See recital 23 of the preamble of the Directive. Economic and Social Committee Opinion 2009/C 27/09 (OJ 2009 L 27/108).

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sponsor must be in possession of a residence permit valid for at least one year and have reasonable prospects of obtaining a right of permanent residence. Article 15(2) also deviates from the requirement of Article 8(1) of the Family Reunification Directive 2003/86/EC, which implies that Member States may not require a sponsor to have been lawfully on a given territory for two years before granting a family reunion. The wording (‘shall not be made dependent on the requirement…having a minimum period of residence’) of Article 15(2) makes clear that member States may not require a period of residence of the sponsor below the threshold of 2 years provided in Article 8 of the Family Reunification Directive 2003/86/EC. This means that a family reunion cannot be made dependent upon any required period of residence of the sponsor. The waiving of a minimum period of residence would also seem to exclude any requirement of a minimum validity of residence below the threshold of one year laid down in Article 3 of Directive 2003/86/EC.

III. Favourable integration measures and conditions (Article 15(3)) Article 15(3) states that integration measures and conditions may only be applied 3 after the persons concerned are granted family reunification. This applies to both Article 7(2) and Article 4(1) of the Family Reunification Directive 2003/86/EC. This also implies that Member States may require integration measures and conditions after family reunification has been granted.154

IV. Favourable processing time (Article 15(4)) The purpose of setting a short time frame from the submission of the application to the 4 moment when the residence permit is issued for family members is to attract highly skilled third-country nationals.155 Article 15(4) deviates from the first subparagraph of Article 5(4) of the Family Reunification Directive 2003/86/EC, which requires the competent authorities to make a decision no later than nine months from the date on which the application was lodged. Article 15(4) is more favourable as it requires the authorities to grant residence permits for family members within six months at the latest.

V. Duration of validity of the residence permit (Article 15(5)) According to Article 15(5), the duration of validity of residence permits for family 5 members must be the same as for the Blue Card holder. The Family Reunification Directive 2003/86/EC provides in Article 13(2) that the residence permits of family members must extend at least one year. The duration of validity of the residence permit of the Blue Card holder must be between one and four years.156 Whether or not Article 15(5) is more favourable than Article 13(2) of the Family Reunification Directive 2003/86/EC thus depends on the national transposition. Also, it should be noted that, according to Article 13(3) of the Family Reunification Directive 2003/86/EC, the duration of the residence permits granted to the family member(s) shall not ‘in principle’ extend beyond the date of expiry of the residence permit held by the sponsor. This implies that, contrary to the Blue Card Directive, residence permits with a longer validity are possible on an exceptional basis. 154

See recital 23 of the preamble of the Directive. See Council doc. 8249/08 of 8 May 2008, p. 32. 156 See Article 7(2). 155

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VI. Favourable access to employment (Article 15(6)) The establishment of favourable conditions for family reunification and facilitated access to work for spouses was considered to be a fundamental element of this Directive, which aims to attract highly qualified third-country workers.157 Article 15(6), therefore, provides provisions that are more favourable for family members of Blue Card holders than those provided for in the Family Reunification Directive 2003/86/EC. By way of derogation from Article 14(2) of the Family Reunification Directive 2003/86/EC, which allows Member States to ‘set a time limit which shall in no case exceed 12 months, during which Member States may examine the situation of their labour market before authorising family members to exercise an employed or self-employed activity’, Member States shall not apply any time limit regarding access to the labour market for family members of Blue Card holders according to Article 15(6). 7 Given that the Family Reunification Directive 2003/86/EC is applicable as far as no special derogations are provided for in the Directive, other provisions of the Family Reunification Directive 2003/86/EC apply. Therefore, apart from the time limit, access to the labour market for family members of Blue Card holders is accessorial to the sponsor’s right of access to the labour market (see Article 14(1)(b) of the Family Reunification Directive 2003/86/EC ‘The sponsor’s family members shall be entitled, in the same way as the sponsor, to…access to employment and self-employed activity’). This means that limitations regarding labour market access applicable to the Blue Card holder are also applicable to family members of a Blue Card holder. It is, however, unclear which limitations the legislators had in mind.158 During the adoption of the Family Reunification Directive 2003/86/EC, the legislators wanted to avoid that family members have more favourable access to employment than the sponsor.159 Therefore, one could argue that ‘objective’ limitations, such as a requirement to exercise only an employed activity or the preliminary execution of labour market tests, which would apply to all Blue Card holders if Member States make use of these restrictions, are applicable to family members as well. ‘Individual’ limitations, however, such as the requirement to work for a certain employer, would not be applicable to family members. However, the Directive also contains’ objective’ limitations that apply to all Blue Card holders, such as those limitations set out in Article 5 (highly qualified employment, salary requirement), which also require the establishment of individual capability. The transfer of the latter requirements would make access to work more difficult for the family members of Blue Card holders. Indeed, these obstacles would contradict the intention of the article to facilitate access to employment for family members of Blue Card holders. To comply with the intention of the Directive to provide favourable conditions regarding access to work for family members of Blue Card holders, Member States may derogate from the requirement to grant family members the same terms of access to work as the sponsor as is set out in Article 14(2) 6

157

Recital 23 of the preamble of the Directive. See Carlitz/Schmidt, ‘Arbeitsmarktzugang von Familienangeho¨rigen in den neuen Migrationsrichtlinien – Akzessorieta¨tsgrundsatz als Stolperstein?’, Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik (2010), p. 309–316 and Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-Card-Richtlinie 2009/ 50/EG und ihre Umsetzung in Deutschland (Nomos 2014), p. 238–245. 159 See also Carlitz/Schmidt, ‘Arbeitsmarktzugang von Familienangeho ¨ rigen in den neuen Migrationsrichtlinien – Akzessorieta¨tsgrundsatz als Stolperstein?’, Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik (2010), p. 310–311 and Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-Card-Richtlinie 2009/50/EG und ihre Umsetzung in Deutschland (Nomos 2014), p. 240. 158

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of the Family Reunification Directive 2003/86/EC and may grant more favourable provisions for family members of Blue Card holders on a national level.160

VII. Time periods in different Member States of family members (Article 15(7) and (8)) Article 15(7) is a facultative provision.161 It is left to the Member States to decide 8 whether or not to apply this derogation. According to Article 15(7), the duration of residence in different Member States may be accumulated for the purpose of calculating ‘the five years’ of residence as is required by Article 15(1) of the Family Reunification Directive 2003/86/EC as a condition for the acquisition of an autonomous residence permit for spouses, unmarried partners or children who have reached majority. The wording ‘five years’ underlines that the facultative derogation of Article 15(7) does not apply to cases where Member States, in accordance with the Family Reunification Directive 2003/86/EC, decide to grant an autonomous residence permit before the end of the fifth year (‘Not later than after five years of residence, [they] shall be entitled … to an autonomous residence permit’, Article 15(1) of the Family Reunification Directive 2003/86/EC).162 Article 15(8) supports such an interpretation of the Directive. According to Article 15(8), the provisions set out in Article 16 regarding the accumulation of periods of residence in different Member States by the Blue Card holder shall apply mutatis mutandis if Member States have recourse to the option provided for in Article 15(7). Article 16, however, also requires ‘five years’ of residence. Article 15(8) sets out the conditions under which family members may accumulate 9 periods of residence in different Member States in order to obtain an autonomous residence permit. It does not provide for the right to accumulate residence in different Member states in order to obtain the status of a long term resident in accordance with the Long Term Residents’ Directive 2003/109/EC.163 The Directive’s drafting history supports such an interpretation. During Council negotiations, the Commission underlined that the right of family members to accumulate periods of residence in different Member States does not apply to the acquisition of status as a long-term resident (‘and not EC-long term resident Permit, for which no facilitation is foreseen’).164

Article 16 EC long-term resident status for EU Blue Card holders 1. Directive 2003/109/EC shall apply with the derogations laid down in this Article. 2. By way of derogation from Article 4(1) of Directive 2003/109/EC, the EU Blue Card holder having made use of the possibility provided for in Article 18 of this Directive is allowed to cumulate periods of residence in different Member States in 160 See Article 3(5) of the Family Reunification Directive 2003/86/EC, which allows more favourable provisions. See also Carlitz/Schmidt, ‘Arbeitsmarktzugang von Familienangeho¨rigen in den neuen Migrationsrichtlinien – Akzessorieta¨tsgrundsatz als Stolperstein?’, Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik (2010), p. 316 and Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-CardRichtlinie 2009/50/EG und ihre Umsetzung in Deutschland (Nomos 2014), p. 245 161 See Council doc. 8249/08 of 8 May 2008, p. 33 and Council doc. 11512/08 of 24 July 2008, p. 22. 162 See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-Card-Richtlinie 2009/50/EG und ihre Umsetzung in Deutschland (Nomos 2014), p. 235–236. 163 See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-Card-Richtlinie 2009/50/EG und ihre Umsetzung in Deutschland (Nomos 2014,9 p. 235–238. 164 Council doc. 8249/08 of 8 May 2008, p. 33, footnote 106.

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order to fulfil the requirement concerning the duration of residence, if the following conditions are met: (a) five years of legal and continuous residence within the territory of the Community as an EU Blue Card holder; and (b) legal and continuous residence for two years immediately prior to the submission of the relevant application as an EU Blue Card holder within the territory of the Member State where the application for the long-term resident’s EC residence permit is lodged. 3. For the purpose of calculating the period of legal and continuous residence in the Community and by way of derogation from the first subparagraph of Article 4(3) of Directive 2003/109/EC, periods of absence from the territory of the Community shall not interrupt the period referred to in paragraph 2(a) of this Article if they are shorter than 12 consecutive months and do not exceed in total 18 months within the period referred to in paragraph 2(a) of this Article. This paragraph shall apply also in cases where the EU Blue Card holder has not made use of the possibility provided for in Article 18. 4. By way of derogation from Article 9(1)(c) of Directive 2003/109/EC, Member States shall extend to 24 consecutive months the period of absence from the territory of the Community which is allowed to an EC long-term resident holder of a longterm residence permit with the remark referred to in Article 17(2) of this Directive and of his family members having been granted the EC long-term resident status. 5. The derogations to Directive 2003/109/EC set out in paragraphs 3 and 4 of this Article may be restricted to cases where the third-country national concerned can present evidence that he has been absent from the territory of the Community to exercise an economic activity in an employed or self-employed capacity, or to perform a voluntary service, or to study in his own country of origin. 6. Article 14(1)(f) and 15 shall continue to apply for holders of a long-term residence permit with the remark referred to in Article 17(2), where applicable, after the EU Blue Card holder has become an EC long-term resident.

Article 17 Long-term residence permit 1. EU Blue Card holders who fulfil the conditions set out in Article 16 of this Directive for the acquisition of the EC long-term resident status shall be issued with a residence permit in accordance with Article 1(2)(a) of Regulation (EC) No 1030/2002. 2. In the residence permit referred to in paragraph 1 of this Article under the heading ‘remarks’, Member States shall enter ‘Former EU Blue Card holder’. Content I. General remarks and drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Derogations of Long Term Residents’ Directive 2003/109/EC (Article 16(1)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Accumulating periods of residence (Article 16(2)). . . . . . . . . . . . . . . . . . . . . . . . . . IV. Periods of absence (Article 16(3), (4) and (5)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Provisions for holders of a long-term residence permit (Article 16(6)) . VI. Long-term residence permit (Article 17) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Part C VIII

I. General remarks and drafting history The derogations to the Long Term Residents’ Directive 2003/109/EC provided by 1 Articles 16 and 17 aim to encourage geographical and circular migration by allowing Blue Card holders to accumulate periods of residence in different Member States in order to fulfil the main condition for obtaining the EC long-term residence status.165 Also, Article 16 provides more favourable provisions regarding periods of being absent from the EU. Blue Card holders who fulfil the conditions set out in Article 16 will be issued a long-term residence permit (Article 17).

II. Derogations of Long Term Residents’ Directive 2003/109/EC (Article 16(1)) The provisions of the Long Term Residents’ Directive 2003/109/EC apply where this 2 Directive does not provide special provisions. This means that Blue Card holders may be required to fulfil the general conditions of the Long Term Residents’ Directive 2003/ 109/EC, such as the requirement that applicants have stable and regular resources (Article 5(1)(a) of the Long Term Residents’ Directive 2003/109/EC), to acquire the status of an EC long-term resident.

III. Accumulating periods of residence (Article 16(2)) Article 16(2) provides for the accumulation of periods of residence in different 3 Member States to fulfil the duration requirement set out in Article 4(1) of the Long Term Residents’ Directive 2003/109/EC. The term ‘different Member States’ implies that, contrary to the Long Term Residents’ Directive 2003/109/EC, Blue Card holders have the right to accumulate periods of residence from more than two Member States.166 However, the reference in Article 16(2) to the ‘possibility provided for in Article 18’ clarifies that Blue Card holders who move to another Member State without fulfilling the requirements of Article 18 may not rely upon the privilege to accumulate their residence even though it may be perfectly legal. To accumulate the periods of residence, Blue Card holders have to spend five years of legal and continuous residence within the territory of the EU (Article 16(2)(a)). Unlike Article 12, which speaks of ‘legal employment’, Article 16(2)(a) requires ‘legal and continuous residence’. It is thus already clear from the wording of the provision that, under Article 13(1), those periods of unemployment that do not affect the residence status of a Blue Card holder do not prejudice the assumption of legal and continuous residence. In addition to the five years of legal and continuous residence, legal and continuous residence for two years is required within the territory of the Member State where the application for a long-term EU residence permit is lodged immediately prior to submitting the relevant application as an Blue Card holder (Article 16(2)(b)). The requirement is based on the assumption that status as a long-term resident implies permanent residential status, which requires a certain degree of integration into the living conditions of the Member State concerned. 165 Commission Proposal, COM(2007) 637 final, p. 11, see also recital 20 of the preamble of the Directive. 166 Article 4(1) of the Long Term Residents Directive 2003/109/EC requests the third-country national to have resided legally and continuously for five years within the same territory of the Member State concerned immediately prior to the submission of the relevant application.

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IV. Periods of absence (Article 16(3), (4) and (5)) 4

Article 16(3) provides the Blue Card holder with more favourable provisions concerning periods of absence from EU territory when calculating the period referenced in Article 16(2)(a). When calculating the period of legal and continuous residence in the EU, periods of absence from EU territory shall not interrupt the requested five-year time period as long as this period is shorter than 12 consecutive months167 and does not exceed in total 18 months of the required five years.168 The Blue Card holder is not required to have moved to a second Member State in accordance with Article 18 to apply the more favourable provisions set out under Article 16(3).169 Therefore, Blue Card holders who are absent from the territory of the EU, while otherwise legally and continuously residing in the first Member State,170 may also profit from the more favourable provisions. According to Article 16(4), a Blue Card holder who has acquired long-term resident status may be absent from the territory of the EU for two consecutive years (24 months) instead of the 12 months provided for in the Long Term Residents’ Directive 2003/109/EC before Member States are permitted to withdraw the long-term resident status in accordance with Article 9(1)(c) of the Long Term Residents’ Directive 2003/ 109/EC. According to Article 16(5), Member States are allowed to grant the more favourable conditions set out under Article 16(3) and (4) only to cases in which the Blue Card holder ‘can present evidence that he has been absent from the territory of the EU to exercise an economic activity in an employed or self-employed capacity, to perform a voluntary service or to study in his own country of origin’.

V. Provisions for holders of a long-term residence permit (Article 16(6)) 5

Article 16(6) deals with the consequences of changing one’s status from Blue Card holder to holder of a long-term residence permit. Since the acquisition of a long-term residence permit is supposed to provide more rights, Article 16(6) provides that Blue Card holders who acquire the status of a long-term resident can ‘transfer’ into the new status some of the rights granted under the Blue Card Directive that are more favourable than under the Long Term Residents’ Directive 2003/109/EC. In its reference to Article 14(1)(f), Article 16(6) makes clear that the right to equal treatment concerning acquired statutory pension also applies after the change in status. The reference to Article 15 clarifies that the privileged rights concerning family members also apply to a long-term resident after a status change. Article 16(6), however, does not explicitly provide for the right to ‘transfer’ into the new status all of those rights that are more 167 Article 4(3) of the Long Term Residents Directive 2003/109/EC only provides that periods of absence shall not interrupt the five years period if they are shorter than six consecutive months. 168 The German and French versions differ from the English version. The German version requires only that the period shall not exceed 12 month: ‘wenn sie zwo¨lf aufeinander folgende Monate nicht u¨berschreiten und innerhalb des Zeitraums gema¨ß Absatz 2 Buchstabe a insgesamt achtzehn Monate nicht u¨berschreiten’. The French version: ‘si elles ne s’e´tendent pas sur plus de douze mois conse´cutifs et ne de´passent pas au total dix-huit mois’. The Spanish version is similar to the English version: ‘son inferiores a 12 meses consecutivos y no exceden en total de 18 meses’. The difference in wording is only of marginal importance. The difference between the German and the English version in wording is similar in the Long Term Residents Directive 2003/109/EC. 169 See second sentence of Article 16(3). 170 See Article 2(d).

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Art. 18

Blue Card Directive 2009/50/EC

Part C VIII

favourable under the Blue Card Directive compared with the Long Term Residents’ Directive 2003/109/EC.171 Considering that the acquisition of the long-term resident status requires the fulfilment of additional conditions, one could argue that it is evident that such a status change does not imply a reduction in the rights connected to the previous status as a Blue Card holder. However, the wording in Article 16(6) is clear and the list of exceptions exhaustive. In addition, the drafting history of Article 16(6) supports an interpretation according to which only the rights mentioned in Article 16(6) can be ‘transferred’ to the new status as long-term resident. The Commission’s Proposal provided that all rights granted under Article 14 can be ‘transferred’ into the new status.172 However, during Council negotiations Article 16(6) was amended to explicitly provide for only the ‘transfer’ of Article 14(1)(f) and Article 15.173

VI. Long-term residence permit (Article 17) According to Article 17(1), Blue Card holders who fulfil the conditions set out under 6 Article 16 shall be issued a special long-term residence permit. The long-term residence permit shall be issued in accordance with Article 1(2)(a) of Regulation (EC) No. 1030/ 2002.174 According to Article 17(2), Member States shall insert the words ‘Former EU Blue Card holder’ onto the long-term residence permit. It is thus possible to identify the specific status of its holder.

CHAPTER V RESIDENCE IN OTHER MEMBER STATES Article 18 Conditions 1. After eighteen months of legal residence in the first Member State as an EU Blue Card holder, the person concerned and his family members may move to a Member State other than the first Member State for the purpose of highly qualified employment under the conditions set out in this Article. 2. As soon as possible and no later than one month after entering the territory of the second Member State, the EU Blue Card holder and/or his employer shall present an application for an EU Blue Card to the competent authority of that Member State and present all the documents proving the fulfilment of the conditions set out in Article 5 for the second Member State. The second Member State may decide, in accordance with national law, not to allow the applicant to work until the positive decision on the application has been taken by its competent authority. 3. The application may also be presented to the competent authorities of the second Member State while the EU Blue Card holder is still residing in the territory of the first Member State.

171 The possibilities for Member States to restrict the equal treatment rights are less extensive under the Blue Card Directive (Article 14(2)) than under the Long Term Residents’ Directive 2003/109/EC (Article 11(2)). See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-Card-Richtlinie 2009/50/EG und ihre Umsetzung in Deutschland (Nomos 2014), p. 223–224. 172 Article 17(6) of the Commission’s Proposal, COM(2007) 637 final, p. 31. 173 Council doc. 8875/08 of 29 April 2008, p. 18. 174 Regulation (EC) No. 1030/2002 (OJ 2002 L 157/1) on uniform formats for residence permits.

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4. In accordance with the procedures set out in Article 11, the second Member State shall process the application and inform in writing the applicant and the first Member State of its decision to either: (a) issue an EU Blue Card and allow the applicant to reside on its territory for highly qualified employment where the conditions set in this Article are fulfilled and under the conditions set out in Articles 7 to 14; or (b) refuse to issue an EU Blue Card and oblige the applicant and his family members, in accordance with the procedures provided for by national law, including removal procedures, to leave its territory where the conditions set out in this Article are not fulfilled. The first Member State shall immediately readmit without formalities the EU Blue Card holder and his family members. This shall also apply if the EU Blue Card issued by the first Member State has expired or has been withdrawn during the examination of the application. Article 13 shall apply after readmission. 5. If the EU Blue Card issued by the first Member State expires during the procedure, Member States may issue, if required by national law, national temporary residence permits, or equivalent authorisations, allowing the applicant to continue to stay legally on its territory until a decision on the application has been taken by the competent authorities. 6. The applicant and/or his employer may be held responsible for the costs related to the return and readmission of the EU Blue Card holder and his family members, including costs incurred by public funds, where applicable, pursuant to paragraph 4(b). 7. In application of this Article, Member States may continue to apply volumes of admission as referred to in Article 6. 8. From the second time that an EU Blue Card holder, and where applicable, his family members, makes use of the possibility to move to another Member State under the terms of this Chapter, ‘first Member State’ shall be understood as the Member States from where the person concerned moves and ‘second Member State’ as the Member State to which he is applying to reside. Content I. General remarks and drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Right of Blue Card holders to move to second Member State (Article 18(1)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Application and allowance for employment (Article 18(2) and (3)) . . . . . IV. Procedure and decision (Article 18(4–7)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. First and second Member State (Article 18(8)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 4 5

I. General remarks and drafting history 1

The intention of Article 18 is to provide for intra-EU mobility for Blue Card holders before they have acquired long-term resident status as per the Long Term Residents’ Directive 2003/109/EC. This provision does not cover cross border ‘commuting’ to carry out highly qualified employment in a second Member States while residing in the first Member State.175 Article 18 allows the second Member States to apply the same conditions of admission as are required for a person’s first entry. However, the added value of this provision is that the second Member State may grant certain entry 175 A proposal to that effect was suggested but did not reach the necessary support in Council, see Council doc. 12320/08 of 1 August 2008, p. 24.

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conditions that are more favourable than those of the first Member State (Article 4(2)(a)). This means, especially, that the second Member State may lower the salary threshold as is set out in Article 5(3).

II. Right of Blue Card holders to move to second Member State (Article 18(1)) Article 18(1) requires that Blue Card holders legally reside in a first Member State for 2 18 months before moving to a second Member State. Blue Card holders cannot make use of the provision if they move to a second Member State before the 18-month requirement has been met. In practice, this would be considered a new entry into a ‘first Member State’ and not intra-EU mobility.176 Periods of unemployment constitute legal residence unless the authorities use their power to terminate a Blue Card holder’s residence under Article 13 of the Directive. The term ‘as an EU Blue Card holder’ means that the person concerned must have been in possession of the Blue Card during the obligatory 18-month period. If the Blue Card expires during that time or the thirdcountry national was in possession of a permit that is not a Blue Card, the conditions of Article 18 are not met. The term ‘as an EU Blue Card holder’ also implies that the thirdcountry national must still be in possession of the Blue Card at the moment of applying.177 It is not necessary for the third-country national to still be in possession of the Blue Card at the moment when the authorities of the second Member State make a decision to grant or to refuse the Blue Card.178 Article 18(4)(a) addresses this question as well, and provides that the second Member State should process the application and inform the ‘applicant’. Also Article 18(5) is based on the assumption that the Blue Card that was issued by the first Member State may expire during the application procedure. ‘For the purpose of highly qualified employment’ means that the facilitated admission conditions of Article 18 are only applicable if the third-country national continues to exercise an activity considered ‘highly qualified employment’. Under Article 18 it is not possible to move to a second Member State to reside for other purposes (e. g. for self-employment, or as a researcher or a student according to the Researchers’ Directive 2005/71/EC and the Students Directive 2004/114/EC). The term ‘other Member State’ means ‘second Member States’ within the meaning of Article 2(e). This includes the possibility to move to more than two Member States (Article 18(8), see also below MN 5).

III. Application and allowance for employment (Article 18(2) and (3)) According to the first sentence of Article 18(2), the Blue Card holder and/or his 3 employer shall present an application for a Blue Card to the competent authorities after entering the territory of the second Member State. National law determines whether the employer and/or the Blue Card holder should submit the application. The application is to be presented as soon as possible and no later than one month after entering the territory. Applications must include the documents proving that the conditions set out in Article 5 have been fulfilled, including a valid work contract specifying the required 176

Council doc. 8249/08 of 8 May 2008, p. 38, footnote 119. See Article 18(2) and (3): ‘the EU Blue Card holder (…) shall present an application’ and ‘The application may also be presented (…) while the EU Blue Card holder is still residing in the territory’. 178 Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-Card-Richtlinie 2009/50/EG und ihre Umsetzung in Deutschland (Nomos 2014), p. 204. 177

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salary, travel documents and sickness insurance. With regard to the salary criterion set out in Article 5(3), the second Member State may also lower the salary threshold. Article 4(2)(a) allows the second Member States to derogate in this aspect from Article 18. The application may also be presented by the applicant while still residing in the territory of the first Member State (Article 18(3)).The provision enables the applicant to clarify his status before moving to a second Member State, thus avoiding the risk of refusal and related costs (Article 18(4(b)).179 The second sentence of Article 18(2) gives the second Member State the right to decide whether the third-country national is allowed to work until a decision on the application has been made. If the second Member State does not allow the applicant to work, the second Member State may limit equal treatment rights granted under Article 14(1) with the exception of freedom of association and affiliation and membership of an organisation representing workers or employers and the recognition of diplomas, certificates and other professional qualifications (Article 14(4)). If second Member States allow the applicant to work until a decision about the application has been made (second sentence of Article 18(2)), equal treatment in all areas of Article 14(1) must be granted (Article 14(4)). Blue Card holders must comply with the conditions set out in Article 12(1) regarding access to work during the first two years of their legal employment in the second Member State.180 Neither Article 18 nor Article 12 provides for a ‘transfer’ of acquired privileges regarding access to work. This means that, even in cases where a Blue Card holder was granted equal treatment rights regarding access to work by a first Member State (second sentence of Article 12(1)), these rights cannot be ‘transferred’ into the second Member State. This interpretation is supported by the wording of the first sentence of Article 12(1), which provides that ‘for the first two years of legal employment in the Member State concerned…access to the labour market …shall be restricted’.

IV. Procedure and decision (Article 18(4–7)) 4

Article 18(4) regulates the procedure and the decision to be taken by the authorities. Article 18(4) refers to Article 11 regarding the procedure, and requires that the competent authorities make a decision on a complete application (first subparagraph of Article 11(1)) and inform in writing the applicant of its decision (see above Article 11 MN 2) within a 90-day time period. For a positive decision to be made, the same conditions must be fulfilled as for first entry. If a positive decision is made, Article 18(4)(a) requires that the Blue Card be issued ‘under the conditions set out in Article 7 to 14’. The reference to Article 7–14 includes procedural rules and allows Member States to carry out labour market tests and apply their national procedures regarding the requirements for filling a vacancy (Article 8(2)). Article 14 guarantees equal treatment in the areas determined. Similar to Article 7(1), Article 18(4) does not clearly address the question as to whether national authorities are obliged to issue a Blue Card (or which discretion they have) and under which conditions third-country nationals acquire a right of admission (see also above Article 7 MN 1).181 Second Member States may also restrict 179 Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-Card-Richtlinie 2009/50/EG und ihre Umsetzung in Deutschland (Nomos 2014), p. 206–207. 180 Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-Card-Richtlinie 2009/50/EG und ihre Umsetzung in Deutschland (Nomos 2014), p. 208–211. 181 Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-Card-Richtlinie 2009/50/EG und ihre Umsetzung in Deutschland (Nomos 2014), p. 208.

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Art. 19

Blue Card Directive 2009/50/EC

Part C VIII

admission based on a determination of volumes of admission (Article 18(7) and Article 6). Provided that an application fulfils all admission criteria and no restrictions are applicable on the basis of a national determination of volumes of admission, an application cannot be rejected in analogy to the ECJ’s reasoning in the case Alaya.182 If the conditions of Article 18 are not fulfilled, Member States have to refuse the Blue Card. In case of a refusal of a Blue Card, Member States oblige the applicant and his/ her family members to leave its territory, unless the third-country national is admitted on exclusively national law terms. This shall also apply if the Blue Card issued by the first Member State has expired or has been withdrawn in the meantime (Article 18(4)(b)). Procedures provided by national law apply, including the procedures of removal. The first Member State is obliged to readmit the applicant and his family members. Once a Blue Card holder has been readmitted, Article 13 shall apply. This means that the readmitted person may search for new employment during a period of three months after readmission. To bridge any time after the expiry of a Blue Card, Member States may grant a temporary national residence permit or equivalent authorization (Article 18(5)). The provision is facultative. If the respective Member State does not make such authorization available, the consequences set out in Article 18(4)(b) apply. Article 18(6) provides that the applicant and/or his employer may be held responsible for the costs related to the return and readmission of the Blue Card holder and his/her family members. The Directive does not clarify whether it is within the discretion of the Member State to decide who should be hold responsible. Since either the Blue Card holder and/or his employer may prepare and submit the application (Article 10(1)), the determination of responsibility may depend upon national law. According to Article 18(7), Member States may continue to apply the volumes of admission criteria (see above Article 6 MN 1).

V. First and second Member State (Article 18(8)) Article 18(8) provides clarification about the terms ‘first’ and ‘second’ Member State 5 for cases in which the Blue Card holder makes use for a second time of the possibility to move to another Member State. This also implies that the Blue Card holder may have the right to move to more than two Member States. According to Article 18(8), the term ‘first Member State’ refers to the Member State from where the person concerned moves away. The term ‘second Member State’ refers to the Member State to which the person concerned is making the application.

Article 19 Residence in the second Member State for family members 1. When the EU Blue Card holder moves to a second Member State in accordance with Article 18 and when the family was already constituted in the first Member State, the members of his family shall be authorised to accompany or join him. 2. No later than one month after entering the territory of the second Member State, the family members concerned or the EU Blue card holder, in accordance with national law, shall submit an application for a residence permit as a family member to the competent authorities of that Member State. 182

ECJ, Ben Alaya, C-491/13, EU:C:2014:2187.

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Part C VIII Art. 19

Immigration

In cases where the residence permit of the family members issued by the first Member State expires during the procedure or no longer entitles the holder to reside legally on the territory of the second Member State, Member States shall allow the person to stay in their territory, if necessary by issuing national temporary residence permits, or equivalent authorisations, allowing the applicant to continue to stay legally on their territory with the EU Blue Card holder until a decision on the application has been taken by the competent authorities of the second Member State. 3. The second Member State may require the family members concerned to present with their application for a residence permit: (a) their residence permit in the first Member State and a valid travel document, or their certified copies, as well as a visa, if required; (b) evidence that they have resided as members of the family of the EU Blue Card holder in the first Member State; (c) evidence that they have a sickness insurance covering all risks in the second Member State, or that the EU Blue Card holder has such insurance for them. 4. The second Member State may require the EU Blue Card holder to provide evidence that the holder: (a) has an accommodation regarded as normal for a comparable family in the same region and which meets the general health and safety standards in the Member State concerned; (b) has stable and regular resources which are sufficient to maintain himself and the members of his family, without recourse to the social assistance of the Member State concerned. Member States shall evaluate these resources by reference to their nature and regularity and may take into account the level of minimum national wages and pensions as well as the number of family members. 5. Derogations contained in Article 15 shall continue to apply mutatis mutandis. 6. Where the family was not already constituted in the first Member State, Article 15 shall apply. Content I. General remarks and drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Right of family members to move to second Member State (Article 19(1)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Application and temporary national residence permit (Article 19(2)) . . . IV. Conditions for residence permit (Article 19(3) and (4)) . . . . . . . . . . . . . . . . . . . V. Applicability of derogations of Article 15 (Article 19(5)) . . . . . . . . . . . . . . . . . . VI. Family not already constituted in first Member State (Article 19(6)). . . .

1 2 3 5 6 7

I. General remarks and drafting history 1

Article 19 provides for the right of family members of a Blue Card holder to move with him/her to a second Member State. Moreover, Article 19 determines the procedures to be followed and the facultative conditions to be fulfilled by the family members and by the Blue Card holder to receive a residence permit in the second Member State. Article 19 was substantially changed during Council negotiations.183 The original Proposal contained fewer requirements for the exercise of a right to reunite one’s family and referred largely to the Family Reunification Directive 2003/86/EC. Article 19(4) was introduced, rephrasing the general conditions for family reunification. The final struc183 See Council doc. 8875/08 of 29 April 2008, p. 21, Council doc. 10398/08 of 18 June 2008, p. 21 and Council doc. 12050/08 of 22 July 2008, p. 23.

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Art. 19

Blue Card Directive 2009/50/EC

Part C VIII

ture of Article 19 may give rise to the question as to whether a family reunion in the second Member State is exhaustively regulated under the Blue Card Directive or whether the Family Reunion Directive 2003/86/EC may be applied as a supplement to the provisions of the Blue Card Directive.

II. Right of family members to move to second Member State (Article 19(1)) Article 19(1) grants an individual right to accompany or join the Blue Card holder 2 when he/she moves to a second Member State provided that the family was already constituted in the first Member State.184 If the family was not yet constituted in the first Member State, Article 15 applies (Article 19(6)). The Blue Card holder and the family members applying for family reunification do not have to be in possession of a residence permit from the second Member State when moving to the second Member State. During negotiations, a suggestion was made to make the right of family members to move to a second Member State dependent on the condition that the sponsor ‘receives a Blue Card in the second Member State’, however, this suggestion was not adopted.185

III. Application and temporary national residence permit (Article 19(2)) According to the first subparagraph of Article 19(2), the family members or the 3 Blue Card holder should submit an application for a residence permit to the competent authorities. The question as to who should submit an application depends on the requirements established by national law (‘in accordance with national law’) as per Article 5(1) of the Family Reunification Directive 2003/86/EC. The application shall be presented no later than one month after entering the territory. Contrary to Article 18(3), which explicitly provides for the right of the Blue Card holder to apply while still residing in the territory of the first Member State, Article 19 does not contain such a special provision for family members. However, according to the wording of Article 19(2), which requires that the application should be submitted ‘no later than one month’, it must also be possible for family members to apply before entering the territory. The second subparagraph of Article 19(2) grants temporary residence permits for 4 family members for the interim period until the authorities of the second Member State have made a decision on the application. During this period, the Member State shall allow the person to stay in their territory in case the residence permit of the family members issued by the first Member State expires during the procedure, or no longer entitles the family members to reside legally on the territory of the second Member State. This rule, however, applies only if the sponsor is still allowed to legally reside in the second Member State. If the sponsor is no longer allowed to legally reside in the second Member State because the authorities of the second Member State have rejected his/her application, the sponsor and his/her family members can be obliged to leave the territory of the second Member State (Article 18(4)(b)).

184 In case the family was not already constituted in the first Member State, Article 19(6) provides that Article 15 should apply. 185 See Council doc. 11512/08 of 24 July 2008.

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Immigration

IV. Conditions for residence permit (Article 19(3) and (4)) 5

Article 19(3) and (4) prescribe the conditions that must be fulfilled by the family member and the Blue Card holder in order to receive a residence permit for the family member. It is unclear whether the Family Reunification Directive 2003/86/EC applies in addition to the special provisions of the Blue Card Directive, or whether Article 19 provides an exhaustive list of the conditions under which a residence permit for family members in the second Member State shall be granted.186 Whereas Article 15(1) provides for the applicability of Directive 2003/86/EC as far as no derogations are permitted in this Directive, Article 19 does not contain such a special provision. Moreover, Article 19 lists in Articles 19(3) and (4) the conditions that must be fulfilled to be granted a residence permit. These conditions are similar to those of the Family Reunification Directive 2003/86/EC.187 Minor differences exist with regard to the definition of the person responsible for the provision of the required documents and the wording of the Directives. Under the Family Reunification Directive 2003/86/EC, the responsibility for providing the required documents rests with the sponsor or the family member.188 Also, the wording of the sickness insurance requirement in Article 19(3)(c) is somewhat wider than in the Family Reunification Directive 2003/86/ EC.189 Since the conditions set out in Article 19(4) were only added during Council negotiations, one could argue that the final version of Article 19 provides an exhaustive list of the conditions and therefore no longer permits reference to the Family Reunification Directive 2003/86/EC, as had been originally envisaged. On the other hand, there are no reasonable grounds to assume that the general terms for refusing a residence permit, such as public policy and security considerations (Article 6(2) Family Reunification Directive 2003/86/EC), should not apply in the context of Article 19. This assumption is also supported by Article 19(5), which provides that the derogations contained in Article 15 should continue to apply. These derogations, however, postulate that the Family Reunification Directive 2003/86/EC is the applicable reference. Article 19(3)(a) provides an almost identical valid travel document requirement as is set out in the Family Reunification Directive 2003/86/EC (see also interpretation above Hailbronner/Are´valo, Family Reunification Directive 2003/86/EC Article 5 MN 7). Contrary to the Family Reunification Directive 2003/86/EC, however, this condition is facultative. Thus, while this requirement is mandatory in the first Member State, it could be waived by a second Member State. According to Article 19(b), the family members may be obliged to present evidence that they have resided as members of a family of the Blue Card holder in the first Member State. Residence implies registry as family member and the habitual residence with the sponsor. Member States may not consider a temporary stay as a visitor or tourist sufficient.

186 See also Herzog-Schmidt, Zuwanderung Hochqualifizierter, Die Blue-Card-Richtlinie 2009/50/EG und ihre Umsetzung in Deutschland (Nomos 2014), p. 247–251. 187 The first subparagraph of Article 5(2) of the Family Reunification Directive 2003/86/EC provides an almost identical travel document requirement as set out in Article 19(3)(a). Article 7(1)(a) and (c) of the Family Reunification Directive 2003/86/EC provides the accommodation requirement and regular resource requirement, which are also contained in Article 19(4)(a) and (b). 188 See Article 7 and Article 5(1) of the Family Reunification Directive 2003/86/EC. 189 Article 7(1)(b) of Family Reunification Directive 2003/86/EC.

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Part C VIII

Article 19(3)(c) provides an almost identical sickness insurance requirement as is set out in the Family Reunification Directive 2003/86/EC (see also interpretation above Hailbronner/Klarmann, Family Reunification Directive 2003/86/EC Article 7 MN 9). However, the wording of the sickness insurance requirement in Article 19(3)(c) is somewhat wider than in the Family Reunification Directive 2003/86/EC with regard to the term ‘all risks’.190 Since the provision is facultative, Member States may also waive the requirement Article 19(4)(a) and (b) provide identical accommodation and resources requirements as are set out in the Family Reunification Directive 2003/86/EC (see also interpretation above Hailbronner/Klarmann, Family Reunification Directive 2003/86/ EC Article 7 MN 6 and 12).

V. Applicability of derogations of Article 15 (Article 19(5)) Article 19(5) provides that the provisions for family members set out in Article 15 are 6 also applicable in the second Member State (see also Article 15 MN 1 et seq.).

VI. Family not already constituted in first Member State (Article 19(6)) Article 19(6) refers to Article 15 and provides that the conditions set out under 7 Article 19 should apply only in cases where the family was already constituted in the first Member State.

CHAPTER VI FINAL PROVISIONS Article 20 Implementing measures 1. Member States shall communicate to the Commission and the other Member States if legislative or regulatory measures are enacted in respect of Articles 6, 8(2) and 18(6). Those Member States which make use of the provisions of Article 8(4) shall communicate to the Commission and to the other Member States a duly justified decision indicating the countries and sectors concerned. 2. Annually, and for the first time no later than 19 June 2013, Member States shall, in accordance with Regulation (EC) No 862/2007, communicate to the Commission statistics on the volumes of third-country nationals who have been granted an EU Blue Card and, as far as possible, volumes of third-country nationals whose EU Blue Card has been renewed or withdrawn, during the previous calendar year, indicating their nationality and, as far as possible, their occupation. Statistics on admitted family members shall be communicated in the same manner, except as regards information on their occupation. In relation to EU Blue Card holders and members of their families admitted in accordance with Articles 18, 19 and 20, the information provided shall, in addition, specify, as far as possible, the Member State of previous residence. 190 Article 7(1)(b) of Family Reunification Directive 2003/86/EC: ‘sickness insurance in respect of all risks normally covered for its own nationals in the Member State concerned for himself/herself and the members of his/her family’.

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3. For the purpose of the implementation of Article 5(3) and, where appropriate, 5(5), reference shall be made to Commission (Eurostat) data and, where appropriate, national data.

Article 21 Reports Every three years, and for the first time no later than 19 June 2014, the Commission shall report to the European Parliament and the Council on the application of this Directive in the Member States, in particular the assessment of the impact of Articles 3(4), 5 and 18, and shall propose any amendments that are necessary. The Commission shall notably assess the relevance of the salary threshold defined in Article 5 and of the derogations provided for in that Article, taking into account, inter alia, the diversity of the economical, sectorial and geographical situations within the Member States.

Article 22 Contact points 1. Member States shall appoint contact points which shall be responsible for receiving and transmitting the information referred to in Articles 16, 18 and 20. 2. Member States shall provide appropriate cooperation in the exchange of the information and documentation referred to in paragraph 1.

Article 23 Transposition 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 19 June 2011. They shall forthwith inform the Commission thereof. When Member States adopt those provisions, they shall contain a reference to this Directive or shall 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 24 Entry into force This Directive shall enter into force on the day following its publication in the Official Journal of the European Union.

Article 25 Addressees This Directive is addressed to the Member States, in accordance with the Treaty establishing the European Community. 834

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Art. 20–25

Part C VIII

Final provisions (Articles 20–25) Articles 20–25 contain the final provisions common to other directives. Article 20 1 contains a special communication obligation with respect to legislative or regulatory measures, which addresses the supervision of how the Directive is transposed and applied into national law. Particular knowledge of the transposition and application of the Directive is considered necessary in order to assess a possible need to amend it. The reference to EUROSTAT-data (Article 20(3)) and national data (Article 20(3)) is meant to help ensure an extensive set of available data to assess the practical effects of the Directive. According to Article 21, the Commission reports to the European Parliament and the Council every three years on the application of the Directive in the Member States. This shall include in particular an assessment of the impact of Article 3(4), Article 5 and Article 18. According to Article 22, Member States shall appoint contact points responsible for receiving and transmitting the information referred to in Articles 16, 18 and 20. According to Article 23, Member States were obliged to implement the Directive by 19 June 2011. Given that the UK, Ireland and Denmark opted out of the Directive in accordance with protocols 4 and 5 annexed to TEU and TEC, it had to be transposed to only 24 Member States. According to Article 24, the Directive entered into force on 19 June 2009, the day following its publication in the Official Journal of the European Union. According to Article 25, the Directive is addressed to the Member States. UK, Ireland and Denmark opted out in accordance with the Protocol (No 4) on the position of the United Kingdom and Ireland (1997) and the Protocol (No 5) on the position of Denmark (1997), both of which are annexed to the TEU and the TEC.

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IX. 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 Official Journal L 168, 30/6/2009, p. 24–32 Selected Bibliography: Hammarberg, ‘Criminalisation of Migration in Europe: Human Rights Implications’ (2010), available at: https://wcd.coe.int/ViewDoc.jsp?id=1579605 [last access: 28 February 2015]; Ho¨rich, ‘Die Sanktionsrichtlinie – Zu¨ndstoff zwischen EuGH und BVerfG’, Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik (2010), p. 49–53; Kokott, ‘The ECJ’s Interpretation of the Posting Directive in the Laval and Ru¨ffert Judgments’, in Scholz/Becker (eds), Die Auswirkungen der Rechtsprechung des Europa¨ischen Gerichtshofs auf das Arbeitsrecht der Mitgliedstaaten (Nomos, 2009), p. 165–172; Peers, ‘Legislative Update: EC Immigration and Asylum Law, Attracting and Deterring Labour Migration: The Blue Card and Employer Sanctions Directives’, EJML 4 (2009), p. 387–426; Peers/Guild/Acosta/Groenendijk/Moreno-Lax (eds), EU Immigration and Asylum Law (Text and Commentary): Second Revised Edition, Volume 2: EU Immigration Law (Brill Nijhoff, 2012), p. 431–460; Schierle, ‘Arbeitsrechtlicher Schutz bei illegaler Bescha¨ftigung’, in: Barwig/Beichel-Benedetti/Brinkmann, Hohenheimer Tage zum Ausla¨nderrecht (Nomos, 2009), p. 97–103; Schierle, ‘96/71/EC: Posting of Workers’, in: Schlachter (ed.), EU Labour Law (Wolters Kluwer, 2015), p. 163–194; Voglrieder, ‘Die Sanktionsrichtlinie: Ein wichtiger Schritt auf dem Weg zu einer umfassenden Migrationspolitik der EU’, Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik 2009, p. 168–178; Zimmermann, ‘Tendenzen der Strafrechtsangleichung in der EU – dargestellt anhand der Bestrebungen zur Beka¨mpfung von Terrorismus, Rassismus und illegaler Bescha¨ftigung’, Zeitschrift fu¨r Internationale Strafrechtsdogmatik 2009, p. 1–10; International Labour Office, ‘Trafficking for labour and sexual exploitation in Germany, Report by Cyrus, Geneva’ (2005), p. 84; European Foundation for the Improvement of Living and Working Conditions, ‘Liability in subcontracting processes in the European construction sector, study by Houwerzijl and Peters’ (2008).

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 63(3)(b) thereof, Having regard to the proposal from the Commission, Having regard to the opinion of the European Economic and Social Committee(1), Having regard to the opinion of the Committee of the Regions(2), Acting in accordance with the procedure laid down in Article 251 of the Treaty(3), Whereas: (1) The European Council meeting of 14 and 15 December 2006 agreed that cooperation among Member States should be strengthened in the fight against illegal immigration and in particular that measures against illegal employment should be intensified at Member State and EU level. (2) A key pull factor for illegal immigration into the EU is the possibility of obtaining work in the EU without the required legal status. Action against illegal immigration and illegal stay should therefore include measures to counter that pull factor. (1)

OJ C 204, 9.8.2008, p. 70. OJ C 257, 9.10.2008, p. 20. (3) Opinion of the European Parliament of 19 February 2009 (not yet published in the Official Journal) and Council Decision of 25 May 2009. (2)

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Employers Sanctions Directive 2009/52/EC

(3) The centrepiece of such measures should be a general prohibition on the employment of third-country nationals who do not have the right to be resident in the EU, accompanied by sanctions against employers who infringe that prohibition. (4) As this Directive provides for minimum standards, Member States should remain free to adopt or maintain stricter sanctions and measures and impose stricter obligations on employers. (5) This Directive should not apply to third-country nationals staying legally in a Member State regardless of whether they are allowed to work in its territory. Furthermore, it should not apply to persons enjoying the Community right of free movement, as defined in Article 2(5) of Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)(4). Moreover it should not apply to third-country nationals who are in a situation covered by Community law, such as those who are lawfully employed in a Member State and who are posted by a service provider to another Member State in the context of the provision of services. This Directive should apply without prejudice to national law prohibiting the employment of legally staying third-country nationals who work in breach of their residence status. (6) For the specific purposes of this Directive, certain terms should be defined and such definitions should be used only for the purposes of this Directive. (7) The definition of employment should encompass its constituent elements, namely activities that are or ought to be remunerated, undertaken for or under the direction and/or supervision of an employer, irrespective of the legal relationship. (8) The definition of employer may include an association of persons recognised as having the capacity to perform legal acts without having legal personality. (9) To prevent the employment of illegally staying third-country nationals, employers should be required, before recruiting a third-country national, including in cases where the third-country national is being recruited for the purpose of posting to another Member State in the context of the provision of services, to check that the third-country national has a valid residence permit or another authorisation for stay showing that he or she is legally staying on the territory of the Member State of recruitment. (10) To enable Member States in particular to check for forged documents, employers should also be required to notify the competent authorities of the employment of a third-country national. In order to minimise the administrative burden, Member States should be free to provide for such notifications to be undertaken within the framework of other notification schemes. Member States should be free to decide a simplified procedure for notification by employers who are natural persons where the employment is for their private purposes. (11) Employers that have fulfilled the obligations set out in this Directive should not be held liable for having employed illegally staying third-country nationals, in particular if the competent authority later finds that the document presented by an employee had in fact been forged or misused, unless the employer knew that the document was a forgery. (12) To facilitate the fulfilment by employers of their obligations, Member States should use their best endeavours to handle requests for renewal of residence permits in a timely manner. (13) To enforce the general prohibition and to deter infringements, Member States should provide for appropriate sanctions. These should include financial sanctions (4)

OJ L 105, 13.4.2006, p. 1.

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Immigration

and contributions to the costs of returning illegally staying third-country nationals, together with the possibility of reduced financial sanctions on employers who are natural persons where the employment is for their private purposes. (14) The employer should in any event be required to pay to the third-country nationals any outstanding remuneration for the work which they have undertaken and any outstanding taxes and social security contributions. If the level of remuneration cannot be determined, it should be presumed to be at least as high as the wage provided for by the applicable laws on minimum wages, by collective agreements or in accordance with established practice in the relevant occupational branches. The employer should also be required to pay, where appropriate, any costs arising from the sending of outstanding remuneration to the country to which the illegally employed third-country national has, or has been, returned. In those cases where back payments are not made by the employer, Member States should not be obliged to fulfil that obligation in place of the employer. (15) An illegally employed third-country national should not derive a right to entry, stay and access to the labour market from the illegal employment relationship or from the payment or back payment of remuneration, social security contributions or taxes by the employer or by a legal entity which has to pay instead of the employer. (16) Member States should ensure that claims are or may be lodged and that mechanisms are in place to ensure that recovered amounts of outstanding remuneration are able to be received by the third-country nationals to whom they are due. Member States should not be obliged to involve their missions or representations in third countries in those mechanisms. Member States should, in the context of establishing effective mechanisms to facilitate complaints and if not already provided for by national legislation, consider the possibility and added value of enabling a competent authority to bring proceedings against an employer for the purpose of recovering outstanding remuneration. (17) Member States should further provide for a presumption of an employment relationship of at least three months’ duration so that the burden of proof is on the employer in respect of at least a certain period. Among others, the employee should also have the opportunity of proving the existence and duration of an employment relationship. (18) Member States should provide for the possibility of further sanctions against employers, inter alia, exclusions from entitlement to some or all public benefits, aids or subsidies, including agricultural subsidies, exclusions from public procurement procedures and recovery of some or all public benefits, aids or subsidies, including EU funding managed by Member States, that have already been granted. Member States should be free to decide not to apply those further sanctions against employers who are natural persons where the employment is for their private purposes. (19) This Directive, and in particular its Articles 7, 10 and 12, should be without prejudice to Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities(5). (20) In view of the prevalence of subcontracting in certain affected sectors, it is necessary to ensure that at least the contractor of which the employer is a direct subcontractor may be liable to pay financial sanctions in addition to or in place of the employer. In specific cases, other contractors may be liable to pay financial sanctions in addition to or in place of an employer of illegally staying third-country nationals. Back payments which are to be covered by the liability provisions of this Directive (5)

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Employers Sanctions Directive 2009/52/EC

should also include contributions to national holiday pay funds and social funds regulated by law or collective agreements. (21) Experience has shown that the existing systems of sanctions have not been sufficient to achieve complete compliance with prohibitions against the employment of illegally staying third-country nationals. One of the reasons is that administrative sanctions alone are likely not to be enough to deter certain unscrupulous employers. Compliance can and should be strengthened by the application of criminal penalties. (22) To guarantee the full effectiveness of the general prohibition, there is therefore a particular need for more dissuasive sanctions in serious cases, such as persistently repeated infringements, the illegal employment of a significant number of thirdcountry nationals, particularly exploitative working conditions, the employer knowing that the worker is a victim of trafficking in human beings and the illegal employment of a minor. This Directive obliges Member States to provide for criminal penalties in their national legislation in respect of those serious infringements. It creates no obligations regarding the application of such penalties, or any other available system of law enforcement, in individual cases. (23) In all cases deemed to be serious according to this Directive the infringement should be considered a criminal offence throughout the Community when committed intentionally. The provisions of this Directive regarding criminal offences should be without prejudice to the application of Council Framework Decision 2002/629/JHA of 19 July 2002 on combating trafficking in human beings(6). (24) The criminal offence should be punishable by effective, proportionate and dissuasive criminal penalties. The obligation to ensure effective, proportionate and dissuasive criminal penalties under this Directive is without prejudice to the internal organisation of criminal law and criminal justice in the Member States. (25) Legal persons may also be held liable for the criminal offences referred to in this Directive, because many employers are legal persons. The provisions of this Directive do not entail an obligation for Member States to introduce criminal liability of legal persons. (26) To facilitate the enforcement of this Directive, there should be effective complaint mechanisms by which relevant third-country nationals may lodge complaints directly or through designated third parties such as trade unions or other associations. The designated third parties should be protected, when providing assistance to lodge complaints, against possible sanctions under rules prohibiting the facilitation of unauthorised residence. (27) To supplement the complaint mechanisms, Member States should be free to grant residence permits of limited duration, linked to the length of the relevant national proceedings, to third-country nationals who have been subjected to particularly exploitative working conditions or who were illegally employed minors and who cooperate in criminal proceedings against the employer. Such permits should be granted under arrangements comparable to those applicable to third-country nationals who fall within the scope of 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(7). (28) To ensure a satisfactory level of enforcement of this Directive and to reduce, as far as possible, differences in the level of enforcement in the Member States, Member (6) (7)

OJ L 203, 1.8.2002, p. 1. OJ L 261, 6.8.2004, p. 19.

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States should ensure that effective and adequate inspections are carried out on their territory and should communicate data on the inspections they carry out to the Commission. (29) Member States should be encouraged to determine every year a national target for the number of inspections in respect of the sectors of activity in which the employment of illegally staying third-country nationals is concentrated on their territory. (30) With a view to increasing the effectiveness of inspections for the purposes of applying this Directive, Member States should ensure that national legislation gives adequate powers to competent authorities to carry out inspections; that information about illegal employment, including the results of previous inspections, is collected and processed for the effective implementation of this Directive; and that sufficient staff are available with the skills and qualifications needed to carry out inspections effectively. (31) Member States should ensure that inspections for the purposes of applying this Directive do not affect, from a quantitative or qualitative point of view, inspections carried out to assess employment and working conditions. (32) In the case of posted workers who are third-country nationals, Member States’ inspection authorities may avail themselves of the cooperation and exchange of information provided for in 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 provision of services(8), in order to verify that the third-country nationals concerned are lawfully employed in the Member State of origin. (33) This Directive should be seen as complementary to measures to counter undeclared work and exploitation. (34) In accordance with point 34 of the Interinstitutional Agreement on better lawmaking(9), Member States are encouraged to draw up, for themselves and in the interests of the Community, their own tables, which will, as far as possible, illustrate the correlation between this Directive and the transposition measures and to make them public. (35) Any processing of personal data undertaken in the implementation of this Directive should be in compliance with Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data(10). (36) Since the objective of this Directive, namely to counteract illegal immigration by acting against the employment pull factor, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of this Directive, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary to achieve that objective. (37) This Directive respects the fundamental rights and observes the principles recognised in particular by the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the European Union. Specifically, it should be applied with due respect for the freedom to conduct a business, equality before the law and the principle of non-discrimination, the right to an effective remedy and to a fair trial and the principles of legality and proportionality of criminal offences and penalties, in accordance with Articles 16, 20, 21, 47 and 49 of the Charter. (8)

OJ L 18, 21.1.1997, p. 1. OJ C 321, 31.12.2003, p. 1. (10) OJ L 281, 23.11.1995, p. 31. (9)

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(38) In accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Directive and are therefore not bound by it or subject to its application. (39) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Directive and is therefore not bound by it or subject to its application, HAVE ADOPTED THIS DIRECTIVE:

Article 1 Subject matter and scope This Directive prohibits the employment of illegally staying third-country nationals in order to fight illegal immigration. To this end, it lays down minimum common standards on sanctions and measures to be applied in the Member States against employers who infringe that prohibition. Content I. II. III. IV. V. VI.

General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The proposal: assumptions and objectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Political context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Scope and legal base. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Structure of the Directive. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Minimum standards and margin of discretion in connection with implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 VII. The European Parliament’s influence during the negotiations . . . . . . . . . . . . 17

I. General remarks The objective of the Directive is to combat illegal immigration. For this purpose, it 1 prohibits the employment of illegally staying third-country nationals. For infringements, the Directive lays down minimum standards for sanctions and measures which Member States are to apply against employers.

II. The proposal: assumptions and objectives The European Commission submitted a proposal1 for the Directive on 16 May 2007, 2 citing as its grounds the connection between unauthorised immigration and the existence of informal labour markets in Member States.2 The possibility of obtaining work in the EU is a key pull factor for illegal immigration. According to the proposal, illegal employment3 is widespread in certain sectors,4 and working conditions are characterised by low wages and poor working conditions. In some Member States, these 1

Commission Proposal, COM(2007) 249. Commission Impact Assessment, SEC(2007) 603, p. 5. 3 On the definition of illegal employment see Article 2(d). 4 The Commission names construction, agriculture and horticulture, house work and cleaning, catering and other hospitality services, Commission Impact Assessment, SEC(2007) 603, p. 7. 2

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persons are not covered by the social security system. Furthermore, the employers’ wage-cost benefits lead to distortion of competition in the domestic market. As the proposal points out, illegal employment places pressure on wages and social security systems. It additionally notes that illegal employment edges out regular employment.5 3 Regarding the number of persons who reside illegally in the EU, the Commission refers to estimates that lie between two and eight million and assume annual increases of between 300,000 and 500,000.6 4 In view of this, the Directive was conceived as an instrument for combating unauthorised immigration. Action against illegal employment7 was the method chosen for achieving this goal. In addition, it aims to avert distortions of competition and to protect affected workers against exploitation. For this purpose, it focuses on employers who gain an economic benefit from illegal employment. Its intention here is to make illegal employment unattractive for such employers. The Directive therefore provides for direct sanctions against employers on the one hand and aims to improve the protection of illegally employed workers under labour law on the other.8 5 The basic approach taken by the proposal for the Directive was retained during the negotiations. The changes that were taken revolved primarily around the formulation of individual rules.

III. Political context The Treaty of Amsterdam9 established Community competence for the area Visas, Asylum, Immigration and Other Policies Related to Free Movement of Persons which also includes the fight against illegal immigration. The Tampere summit formulated the objective of developing a common migration policy.10 In its Communication dated 15 November 2001, the Commission detailed, as part of a comprehensive immigration policy,11 its ideas in the area of illegal immigration. The aim of decreasing the attractiveness of illegal employment for employers had already been formulated back then in this Communication.12 7 The Hague Programme13 – and, since then, the Stockholm Programme14 as well – reinforced the call for a comprehensive immigration policy and linked legal immigra6

5

Commission Impact Assessment, SEC(2007) 603, p. 7 et seq. Commission Impact Assessment, SEC(2007) 603, p. 5 et seq. See recital 2. 8 A similar approach was taken by the ILO-Convention no. 143 concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers, 1975, in particular Articles 6 and 9 of the Convention. According to the Commission, the Directive ‘toughens sanctions for illegal employment and improves detection mechanisms, while providing for protective measures designed to redress injustices suffered by irregular migrants’, COM(2014) 286 final, p. 2. However, according to others, the Directive ‘is another measure in the arsenal of the criminalisation of immigration’, Peers/Guild/Tomkin, EU Immigration and Asylum Law (Martinus Nijjoff, 2012), p. 444. Critical on the approach also: Hammarberg, ‘Criminalisation of Migration in Europe: Human Rights Implications’ (2010), available at: https://wcd.coe.int/ViewDoc.jsp?id=1579605 [last access: 28 February 2015]. 9 Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Related Acts of 7 October 1997 (OJ 1997 C 340/173), entered into force on 1 May 1999. 10 Tampere European Council of 15/16 October 1999, Presidency Conclusions, MN 10 et seqq, available at: http://www.europarl.europa.eu/summits/tam_en.htm [last access: 28 February 2015]. 11 Commission Communication, COM(2001) 672 final. 12 Ibid., p. 4. 13 Council, The Hague Programme: strengthening freedom, security and justice in the European Union of 3 March 2005 (OJ 2005 C 53/1). 14 Council doc. 17024/09 of 2 December 2009. 6 7

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tion with the fight against illegal immigration. The European Council underscored this ‘global approach to migration’ in its Conclusions from 15/16 December 2005.15 In its Communication from 19 July 2006, the Commission outlined the connection between legal migration opportunities and the fight against illegal immigration.16 It further described illegal employment as a key pull factor for illegal immigration which should be fought in all Member States.17 In the Presidency Conclusions from 14/15 December 2006,18 the European Council called upon the Commission to take measures against illegal employment at EU level. The Commission complied by drafting a proposal for a directive.

IV. Scope and legal base The Directive applies firstly to all employers who employ third-country nationals or 8 plan to employ third-country nationals. The term employer is defined at Article 2(e). This definition is closely linked with the definition of employment at Article 2(c). Third-country nationals are defined in Article 2(a). Secondly, illegally staying thirdcountry nationals (Article 2(b)) who work or have worked also fall under the scope of the Directive. On the other hand however, third-country nationals who are permitted to reside in a 9 Member State but who work in breach of the conditions that apply to their residence permit are not covered by the Directive.19 The legal base chosen for the Directive – Article 61(1)(3)(b) TEC (now Arti- 10 cle 79(2)(c) TFEU) (illegal immigration and unauthorised residence) – would not have extended to the inclusion of this group of persons.20 This would have required basing the Directive on at least Article 63(1)(3)(a) TEC (now Article 79(2)(a) TFEU) (conditions of entry and residence) as well.21

V. Structure of the Directive The Directive’s provisions can be generally grouped in four main regulatory fields: 11 preventive measures (Article 4(1)), sanctions against employers (Articles 5, 7, 9, 10, 11 and 12), employee rights (Articles 6, 8 and 13) and inspections by Member States (Article 14). The sanctions include criminal penalties, non-criminal sanctions and other measures 12 such as exclusion from participation in public contracts. The different penalties, sanctions and measures are not mutually exclusive, but may also be imposed concurrently or parallel to one another (Article 10(2)). The employee rights set forth in the Directive revolve primarily around the enforcement of claims against the employer for outstanding remuneration (Article 6(1)(a)) and, if applicable, his principal (Article 8). 15 Bruxelles European Council of 15/16 December 2005, Presidency Conclusions, MN 8, available at: http://www.europarl.europa.eu/summits/pdf/bru1205_en.pdf [last access: 28 February 2015]. 16 Commission Communication, COM(2006) 402 final. 17 Ibid., MN 36 et seqq. 18 Bruxelles European Council of 14/15 December 2006, Presidency Conclusions, MN 24, available at: http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/92202.pdf [last access: 28 February 2015]. 19 See recital 5. 20 Council doc. 14655/07 of 5 November 2007, p. 10. 21 On the legal base: Zimmermann, ‘Tendenzen der Strafrechtsangleichung in der EU – dargestellt anhand der Bestrebungen zur Beka¨mpfung von Terrorismus, Rassismus und illegaler bescha¨ftigung’, Zeitschrift fu¨r Internationale Strafrechtsdogmatik 1 (2009), p. 1.

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In addition, illegally employed persons have the right to lodge a complaint against their employer (Article 13(1)).22 13 The prerequisite for imposing sanctions or asserting employee rights under this Directive is an infringement against the prohibition on illegal employment laid down in Article 3. In addition, the exclusion from liability provided for under Article 4(3) when the employer has fulfilled his control, documentation and reporting obligations in accordance with Article 4(1) must not be given.

VI. Minimum standards and margin of discretion in connection with implementation The Directive establishes minimum standards in all areas that it regulates.23 Member States may exceed these minimum standards in their implementation of the Directive. They may lay down stricter rules or prescribe higher levels of protection. 15 This follows firstly from Article 1 in conjunction with recital 4. It is also indicated by the title of the Directive. Article 1 sets minimum standards for sanctions and measures. Supplementing this, recital 4 additionally speaks of stricter obligations for employers. Thus, at least the control, documentation and reporting obligations as well as the sanctions and other measures are covered. The question of whether employee protection rules (Articles 6, 8 and 13) are also to fall under the measures and employer obligations is not relevant here because during the negotiations special rules (Article 8(4) and Article 16) were established which state that they constitute minimum standards. The caution exhibited by the Member States and the European Parliament can be attributed in large part to the ECJ’s interpretation24 of Article 3(7) of Directive 96/71/EC (Posting of workers).25 Under this provision, those terms and conditions of employment which are more favourable to the respective workers are to be applied. The court’s ruling however marked the first time that the ECJ interpreted employee protection rules as standards which Member States may not exceed. 16 Some minimum standards allow deviations that fall short of the respective standard (Article 4(2), Article 5(3) and Article 7(2)) or were elaborated only as options (Article 3(3), Article 6(2)(b), Article 10(2) and Article 12(2)). Reference is often made to national legislation. All in all, on many points the Member States retain a considerable margin of discretion for their implementation. 14

VII. The European Parliament’s influence during the negotiations 17

The Directive was adopted using the codecision procedure. After the EP and the Council reached agreement on a compromise text in the course of a so-called informal trialogue, the EP adopted the Directive on first reading. This necessitated concessions on the part of the Council. These concessions revolved primarily around the criminal penalties and the strengthening of employee protection rights. In the Council, the Directive was negotiated by the Working Party on Migration in close cooperation with 22 On the employees rights: Schierle in Barwig/Beichel-Benedetti/Brinkmann (eds), Hohenheimer Tage zum Ausla¨nderrecht (Nomos, 2009), p. 97. 23 Peers, EJML 4 (2009), p. 411. 24 ECJ, Laval, C-341/05, EU:C:2007:809, para 111; ECJ, Ru ¨ ffert, C-346/06, EU:C:2008:189, para 33; AG Bot, Ru¨ffert, C-346/06, EU:C:2007:541, para 81 et seqq; Kokott, ‘The ECJ’s Interpretation of the Posting Directive in the Laval and Ru¨ffert Judgments’, in: Scholz/Becker (eds), Die Auswirkungen der Rechtsprechung des Europa¨ischen Gerichtshofs auf das Arbeitsrecht der Mitgliedstaaten (Nomos, 2009), p. 165. 25 Posted Workers Directive 96/71/.

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employment experts. In the European Parliament, the Committee on Civil Liberties, Justice and Home Affairs (LIBE) was responsible for the Directive. The Employment Committee (EMPL) was involved as an associated committee.26 The EMPL’s negotiating position was decisive in connection with the labour law-related provisions. Determining which of the outcomes from these negotiations were due to the EP’s 18 influence necessitates an examination not only of the results of the negotiations and the draft reports from the LIBE and EMPL, but also the results of the negotiations in the Council immediately prior to the drafting of the reports and the Council’s various interim versions of the text of the Directive during the informal trialogue. Some of the changes proposed in the EP’s draft reports merely reproduce the then current results of negotiations in the Council. In these cases the changes cannot be attributed to the EP. For this reason, a simple comparison of the EP’s draft reports with the final version of the Directive does not suffice to establish the source of the individual changes.27

Article 2 Definitions For the specific purposes of this Directive, the following definitions shall apply: (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 and who is not a person enjoying the Community right of free movement, as defined in Article 2(5) of the Schengen Borders Code; (b) ‘illegally staying third-country national’ means a third-country national present on the territory of a Member State, who does not fulfil, or no longer fulfils, the conditions for stay or residence in that Member State; (c) ‘employment’ means the exercise of activities covering whatever form of labour or work regulated under national law or in accordance with established practice for or under the direction and/or supervision of an employer; (d) ‘illegal employment’ means the employment of an illegally staying third-country national; (e) ‘employer’ means any natural person or any legal entity, including temporary work agencies, for or under the direction and/or supervision of whom the employment is undertaken; (f) ‘subcontractor’ means any natural person or any legal entity, to whom the execution of all or part of the obligations of a prior contract is assigned; (g) ‘legal person’ means any legal entity having such status under applicable national law, except for States or public bodies exercising State authority and for public international organisations; (h) ‘temporary work agency’ means any natural or legal person who, in compliance with national law, concludes contracts of employment or employment relationships with temporary agency workers in order to assign them to user undertakings to work there temporarily under their supervision and direction; (i) ‘particularly exploitative working conditions’ means working conditions, including those resulting from gender based or other discrimination, where there is a striking disproportion compared with the terms of employment of legally employed workers which, for example, affects workers’ health and safety, and which offends against human dignity; 26 27

See Rules of Procedure of the European Parliament. Different: Peers, EJML 4 (2009), p. 411.

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(j) ‘remuneration of illegally staying third-country national’ means the wage or salary and any other consideration, whether in cash or in kind, which a worker receives directly or indirectly in respect of his employment from his employer and which is equivalent to that which would have been enjoyed by comparable workers in a legal employment relationship. Content I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1. Third-country national (Article 2(a)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2. Illegally staying third-country national (Article 2(b)) . . . . . . . . . . . . . . . . . . . 4 3. Employment (Article 2(c)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 4. Illegal employment (Article 2(d)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 5. Employer (Article 2(e)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 6. Subcontractor (Article 2(f)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 7. Legal person (Article 2(g)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 8. Temporary work agency (Article 2(h)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 9. Particularly exploitative working conditions (Article 2(i)) . . . . . . . . . . . . . . 11 10. Remuneration of illegally staying third-country national (Article 2(j)) 12

I. General remarks The terms were defined for the specific purposes of this Directive. This was particularly the case for the definition of employment. This definition was a very controversial point during the negotiations. It probably would not have been possible to define employment in this way in a labour law text. A compromise was however accepted in the migration directive because the Member States were less fearful of establishing a precedent for further acts. Other definitions such as for ‘third-country nationals’ and ‘legal persons’ were however already well known from earlier acts. They are standardly used and help ensure a uniform understanding of the respective term. 2 Some of these definitions are closely linked with one another. Previously defined terms were used in the following definitions. Thus Article 2(a), (b), (c) and (d) must be seen in context together as are the Article 2(c), (e) and (h). 1

II. Definitions 1. Third-country national (Article 2(a)) 3

This definition corresponds to Article 2(6) of the Schengen Borders Code Regulation (EC) No 562/2006. A third-country national is any person who is not a Union citizen within the meaning of Article 17 TEC (now Article 20 TFEU) and who is not a person enjoying the right of free movement, as defined in Article 2(5) of the Schengen Borders Code Regulation (EC) No 562/2006. Thus this definition does not include family members of Union citizens who fall under the Free Movement Directive 2004/38/EC. It additionally does not include citizens of Switzerland or of the EEA states Iceland, Liechtenstein and Norway or their family members.

2. Illegally staying third-country national (Article 2(b)) 4

A third-country national is staying illegally when he is present on the territory of a Member State and does not fulfil or no longer fulfils the conditions for stay or residence in that Member State. This therefore includes third-country nationals who have had no 846

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right of residence from the start and third-country nationals whose residence status expired during their residence. Not included on the other hand are third-country nationals who are allowed to stay in a Member State but who exercise an activity in breach of their residence status.28 This can be the case when, for example, the exercise of an activity is prohibited, or residence is allowed only for the purpose of exercising a specific activity or only for the purpose of exercising an activity for a specific employer. The inclusion of this group of persons was discussed during the negotiations. It was rejected because it would have necessitated using as the legal basis not only Article 63(3)(b) TEC (now Article 79(2)(c) TFEU) (illegal immigration and unauthorised residence) but also, at the very least, Article 63(3)(a) TEC (now Article 79(2)(a) TFEU) (conditions of entry and residence) with the consequence that the Council would have been required to take its decision by unanimous vote rather than a qualified majority vote.29

3. Employment (Article 2(c)) First of all, employment must involve activities that are exercised for or under the 5 direction and/or supervision of an employer (defined at Article 2(e)). In addition, the exercise of these activities must be regulated under national law or in accordance with established practice as a form of labour or work. This definition was highly contentious during the negotiations. A standard definition for employment does not exist at either international or European level. Several Member States therefore feared that a precedent might be unintentionally established by this Directive. The prevailing assumption is that employment exhibits at least two fundamental features: Firstly, the exercise of an activity that is subject to direction and secondly, the employer is required to pay remuneration.30 The feature entailing the obligation to pay remuneration was not included in the operative text of the Directive. It is only mentioned in recital 7. The reason for this was the concern of several Member States that, when inspected, employers could allege that illegal workers are unpaid helpers or trainees. These cases should be included for the purposes of this Directive.

4. Illegal employment (Article 2(d)) This definition is derived from the terms defined in Article 2(a), (b) and (c). 6 Important here is that in conformity with Article 2(b) and in contrast to what the wording of this term indicates at first glance, this definition covers only illegally staying third-country nationals.31

5. Employer (Article 2(e)) This definition is connected with Article 2(c). Temporary work agencies were 7 expressly included in this definition at the request of the European Parliament.32 The term temporary work agency is defined at Article 2(h). 28

See recital 5, last sentence. Voglrieder, Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik (2009), p. 168. 30 A further criterion in legislation regarding the free movement of workers is that the employment involve an economic activity, in contrast to activities which appear to be completely irrelevant due to their marginal scale. 31 Whenever the terms ‘illegal employment’ or ‘illegal worker’ are used in this commentary, the employment always involves illegally staying third-country nationals, in keeping with this definition. 32 European Parliament, Report of the Committee on Civil Liberties, Justice and Home Affaires of 27 January 2009, A6-0026/2009, Amendment 11 (EMPL). 29

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6. Subcontractor (Article 2(f)) 8

The term subcontractor was defined for the liability provisions set forth in Article 8. This term refers to any natural person or legal entity to whom the execution of all or a part of the obligations of a prior contract have been assigned. It is irrelevant whether a subcontractor is assigned the obligation by a main contractor or an intermediate subcontractor.

7. Legal person (Article 2(g)) 9

Reference is made to the national law of the Member States. States, public international organisations and public bodies exercising State authority are expressly excluded from this definition.

8. Temporary work agency (Article 2(h)) 10

An employment relationship for which national law applies is a prerequisite here. The purpose of a temporary work agency must be to assign workers to user undertakings to work there temporarily under their supervision and direction. Temporary work agencies are employers within the meaning of Article 2(e).

9. Particularly exploitative working conditions (Article 2(i)) 11

This definition should be seen in conjunction with Article 9(1)(c) (Criminal offence). Working conditions are defined as particularly exploitative when there is a striking disproportion compared with the terms of employment of legally employed workers. In this connection due regard must also be given to gender-based or other discrimination. The Directive cites as examples working conditions that affect workers’ health and safety or that offend against human dignity. This definition was not included in the proposal and was later added. The wording of the definition of criminal offence in the draft (‘working conditions, such as a significant difference in working conditions from those enjoyed by legally employed workers’) was considered too vague. The Council Working Party on Substantive Criminal Law had even advocated deleting this provision entirely.33 It was however unable to find sufficient support for this request.

10. Remuneration of illegally staying third-country national (Article 2(j)) 12

Remuneration was defined for the purpose of Article 6 (Back payments to be made by employers). This term should be understood in a broad sense and also includes consideration in kind and other benefits that the employer provides, which is also in conformance with legislation regarding the free movement of workers. Key here are the payments that the remuneration of a comparable worker in a normal employment relationship would include. This definition was included at the request of the European Parliament.34

Article 3 Prohibition of illegal employment 1. Member States shall prohibit the employment of illegally staying third-country nationals. 33 34

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2. Infringements of this prohibition shall be subject to the sanctions and measures laid down in this Directive. 3. A Member State may decide not to apply the prohibition referred to in paragraph 1 to illegally staying third-country nationals whose removal has been postponed and who are allowed to work in accordance with national law. Content I. Prohibition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3

I. Prohibition Article 3 is the central prohibitory rule in the Directive. Pursuant to Article 3(1), 1 Member States shall prohibit the employment of illegally staying third-country nationals. The terms used here are defined in Article 2(a) to (c). Pursuant to Article 3(2), infringements of this prohibition shall be subject to the 2 sanctions and measures laid down in the Directive. The sanctions and measures that are referred to here are set forth in Articles 5 to 13. The wording used is not to be understood as meaning that Member States may not adopt any further sanctions or measures in addition to those set out in the Directive. Under Article 1, the sanctions and measures set forth in the Directive constitute minimum standards which Member States may exceed. Recital 4 underscores this.

II. Exemption The purpose of Article 3(3) is not clear at first glance. Member States have the option 3 of exempting from this prohibition third-country nationals whose removal has been postponed and of allowing them to work even though they are illegally staying persons.35 This would appear to run counter to the Directive’s objective. The proposal did not contain this provision. It was added in order to accommodate 4 the German concept of Duldung.36 Duldung (temporary suspension of deportation) is defined in Section 60a of the German Residence Act as the suspension of the deportation of a foreigner who is required to leave the Federal territory. Duldung is not a residence permit and does not entitle the individual to stay in the Federal territory. Nonetheless, a work permit may be issued under certain conditions. Without the exemption set forth in Article 3(3), this would no longer have been possible. The wording ‘third-country nationals whose removal has been postponed’ closely follows the wording used in Article 9 Return Directive 2008/115/EC.37

Article 4 Obligations on employers 1. Member States shall oblige employers to:

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The exception is mentioned in: AG Bot, Tu¨mer, C-311/13, EU:C: 2014:1997, para 84. Voglrieder, Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik (2009), p. 168. 37 DE, EL, FI, FR, MT, RO and SE made use of the option in Article 3(3) in their national legislation, Commission Communication, COM(2014) 286 final, p. 3. 36

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(a) require that a third-country national before taking up the employment holds and presents to the employer a valid residence permit or other authorisation for his or her stay; (b) keep for at least the duration of the employment a copy or record of the residence permit or other authorisation for stay available for possible inspection by the competent authorities of the Member States; (c) notify the competent authorities designated by Member States of the start of employment of third-country nationals within a period laid down by each Member State. 2. Member States may provide for a simplified procedure for notification under paragraph 1(c) where the employers are natural persons and the employment is for their private purposes. Member States may provide that notification under paragraph 1(c) is not required where the employee has been granted long-term residence status under Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents(11). 3. Member States shall ensure that employers who have fulfilled their obligations set out in paragraph 1 shall not be held liable for an infringement of the prohibition referred to in Article 3 unless the employers knew that the document presented as a valid residence permit or another authorisation for stay was a forgery. Content I. II. III. IV. V.

General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Control and documentation obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Notification obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Non-liability on fulfilment of employer’s obligations . . . . . . . . . . . . . . . . . . . . . .

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I. General remarks Article 4(1) imposes control, documentation and notification obligations on employers when employing third-country nationals, aimed on the one hand at preventing illegal employment and at enabling effective oversight by government authorities on the other. Before the employee takes up employment, the employer is obliged to require him to present a valid authorisation for stay and to keep a copy of it for the duration of the employment. The competent authority must also be notified of the commencement of employment. 2 If the employer discharges these duties, he can be not made liable under this Directive, unless the employer had knowledge that the presented authorisation for stay was a forgery. Besides a violation of the prohibition on illegal employment from Article 3, employer liability and/or sanctions under Articles 5 to 12 of the Directive therefore also always presuppose a breach of the obligations under Article 4. 3 Article 4 introduces so-called information obligations for employers. With a view to dismantling bureaucracy, to which the European Union is committed under its Initiative for Better Regulation, the introduction of new information obligations requires special justification. The administrative burden must stand in reasonable relation to the benefit of the obligation.38 1

(11) 38

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OJ 2004 L 16/44. European Commission, Impact Assessment Guidelines, SEC(2009) 92, p. 43.

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The measures specified are already part of current legislation in the majority of 4 Member States.39 In the opinion of the European Commission, they will only place a small additional burden on Member States where such provisions do not yet apply.40 To keep this burden to a minimum, the Member States are given leeway in implementation. Notification periods and competent authorities will be specified by the Member States, as well as the manner in which the employer is obliged to retain the authorisation for stay (‘copy or record’). For the purpose of the Directive, the introduction of information obligations is appropriate in view of its preventive effect and because it enables or facilitates controls.

II. Drafting history In comparison with the Commission proposal, changes have been made to Article 4, 5 largely of an editorial nature but also in terms of content in some respects. The legislative content of Article 5 in the proposal (non-liability on fulfilment of employer obligations) was adopted in full in Article 4(3). While the proposal held the employer liable if the authorisation for stay presented to him was ‘manifestly incorrect’, he is now only liable, if he knew that the document presented was a forgery. The term ‘manifestly incorrect’ was considered too vague in negotiations and was therefore replaced. The one-week notification period envisaged in the draft has been abandoned and left 6 to the discretion of the Member States. This provision has been moved from Article 4(2) in the draft to Article 4(1)(c). Article 4(1)(a) to (c) of the draft have been amalgamated in Article 4(1)(a) and (b). Article 4(1)(a) now omits the need for the authorisation for stay to be valid for the duration of the employment. While the notification obligation was originally intended to apply solely to ‘employ- 7 ers acting in the course of business activities or who are legal persons’, it now applies regularly for all employers. The Member States may, however, arrange for a simplified notification procedure where employers are natural persons and the ‘employment is for their private purposes’. There is now no obligation to notify the end of the employment. A new addition provides for exemption from the notification obligation where the employee holds long-term resident status according to the Long Term Residents’ Directive 2003/109/EC.

III. Control and documentation obligations The control and documentation obligations under Article 4(1)(a) and (b) are closely 8 interrelated. Prior to commencement of employment, the employer is obliged to require a third-country national to hold and present a valid residence permit or another valid authorisation for stay. The employer must make a copy of the authorisation presented or make an appropriate record of the contents. He must keep the documents available for inspection at least for the duration of employment.41 In this connection, the obligation of the employer to require that the third-country 9 national ‘holds’ a valid residence permit is of no independent significance. Crucial here 39

Commission Impact Assessment, SEC(2007) 603, p. 100. Commission Impact Assessment, SEC(2007) 603, p. 36. 41 The ECJ decided that the documentation obligation in the German law on the posting of workers (for the duration of the posting and for at least the duration of the building project, but two years for the maximum) is in accordance with Article 49 TEC (now Article 56 TFEU). ECJ, Commission v Germany, C-490/04, EU:C:2007:430, para 56. 40

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is for the employer to require presentation of the authorisation, make a copy or record, and keep this available. 10 The wording, ‘residence permit or other authorisation for his or her stay’ is broad in scope and encompasses any authorisation for stay in a Member State. This follows systematically from recital 9 at the end and the definition in Article 2(b), which specifies that a third-country national is staying illegally, if he does not fulfil or no longer fulfils the conditions for stay or residence. It also comprises persons under the exemption of Article 3(3). Otherwise, the employer could not meet his obligation under Article 4(1) for these persons who are allowed to work. This is evidently not intended. 11 Of equally broad scope is the wording ‘copy or record’. While the term ‘copy’ is unambivalent, ‘record’ makes no stipulation as to form. A record can therefore be made just as well simply by writing down the relevant data as by scanning or photographing. Of decisive importance is that the data be kept available for inspection.

IV. Notification obligation Under Article 4(1)(c), the employer is obliged to notify the competent authorities specified by the Member States of the commencement of employment of the thirdcountry national. The period for notification is stipulated by the Member States. A short period would seem appropriate with a view to effective control. Otherwise, an employer accused of breaching notification procedure may be able to successfully claim that the employee in question had taken up employment just before inspection. A standard notification period – discussion included a week, three days or directly after taking up employment – did not gain acceptance, however, due to differences in national notification procedures. Arrangements on notification procedure are left to the Member States. 13 Article 4(2) provides for two exceptions to Article 4(1)(c). On the one hand, a simplified notification procedure can be arranged where the employer is a natural person and the employment is for his private purposes. The Member States can thus make special provision, for notification of domestic helps, for example, without exempting employment relationships from the notification obligation in general. On the other, they may also opt to exempt long-term legal residents as per Long Term Residents’ Directive 2003/109/EC from the notification obligation. 12

V. Non-liability on fulfilment of employer’s obligations 14

Article 4(3) ensures that employers who have met their obligations under Article 4(1) cannot be held liable for infringing the prohibition on illegal employment under Article 3 of this Directive. The only exception is when the employer knew that the authorisation for stay the presented was a forgery (Article 4(3) at the end). Provided the employer acted in good faith, he cannot be held liable when a document has been forged or misused by a person.

Article 5 Financial sanctions 1. Member States shall take the necessary measures to ensure that infringements of the prohibition referred to in Article 3 are subject to effective, proportionate and dissuasive sanctions against the employer.

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2. Sanctions in respect of infringements of the prohibition referred to in Article 3 shall include: (a) financial sanctions which shall increase in amount according to the number of illegally employed third-country nationals; and (b) payments of the costs of return of illegally employed third-country nationals in those cases where return procedures are carried out. Member States may instead decide to reflect at least the average costs of return in the financial sanctions under point (a). 3. Member States may provide for reduced financial sanctions where the employer is a natural person who employs an illegally staying third-country national for his or her private purposes and where no particularly exploitative working conditions are involved. Content I. General remarks and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Financial sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Option for reduced financial sanctions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. General remarks and drafting history Article 5 obligates Member States to provide for effective, proportionate and dissuasive sanctions to be imposed in the event of infringements of the prohibition of illegal employment. These are administrative sanctions and not criminal penalties. For this reason, the term ‘financial penalties’ which was used in Article 5(2)(a) and recital 7 of the proposal was replaced with the term ‘financial sanctions’. The Community legislature would not have had the competence necessary for determining financial penalties.42 Under Article 5(2) of the proposal, sanctions should be imposed for ‘any’ infringement. This was not compatible with the so-called discretionary principle, under which an administrative body may act on its own discretion within a specific legal framework. The word ‘any’ was therefore deleted in the course of the negotiations. Under Article 5(2)(b) of the draft, the costs of return of each illegally employed third-country national in those cases where return procedures are carried out should be charged on a mandatory basis. Since some Member States considered this to be impracticable, the provision was reformulated during the negotiations to be more flexible. Member States can now alternatively allow for the average costs of return when they impose financial sanctions pursuant to Article 5(2)(a). The possibility of reduced financial sanctions under Article 5(3) was first included during the negotiations.

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II. Financial sanctions Under Article 5(2)(a), financial sanctions which increase in amount according to the 5 number of illegally employed third-country nationals shall be imposed on employers. The question of whether the amount of the sanction should increase on a linear, progressive or degressive basis is left to the Member States. 42 ECJ, Parliament v Council, C-440/05, EU:C:2007:625, para 70. The determination of the type and level of the criminal penalties to be applied does not fall within the Community’s sphere of competence.

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Insofar as return procedures are carried out, the costs of return are to be imposed on the employer pursuant to Article 5(2)(b). By way of derogation Member States may instead decide to charge a flat rate for the costs of return. In such cases, the average costs of return will at the least be imposed as part of the financial sanctions under Article 5(2)(a).43

III. Option for reduced financial sanctions 7

Under Article 5(3), Member States may provide for reduced financial sanctions for employers who are natural persons. The prerequisite for this is that the illegally staying third-country national has been employed for private purposes and that no particularly exploitative working conditions are involved. This covers for example the illegal employment of domestic help provided that no particularly exploitative working conditions within the meaning of Article 2(i) are involved. Member States are not required to provide for reduced financial sanctions for such cases.

Article 6 Back payments to be made by employers 1. In respect of each infringement of the prohibition referred to in Article 3, Member States shall ensure that the employer shall be liable to pay: (a) any outstanding remuneration to the illegally employed third-country national. The agreed level of remuneration shall be presumed to have been at least as high as the wage provided for by the applicable laws on minimum wages, by collective agreements or in accordance with established practice in the relevant occupational branches, unless either the employer or the employee can prove otherwise, while respecting, where appropriate, the mandatory national provisions on wages; (b) an amount equal to any taxes and social security contributions that the employer would have paid had the third-country national been legally employed, including penalty payments for delays and relevant administrative fines; (c) where appropriate, any cost arising from sending back payments to the country to which the third-country national has returned or has been returned. 2. In order to ensure the availability of effective procedures to apply paragraph 1(a) and (c), and having due regard to Article 13, Member States shall enact mechanisms to ensure that illegally employed third-country nationals: (a) may introduce a claim, subject to a limitation period defined in national law, against their employer and eventually enforce a judgment against the employer for any outstanding remuneration, including in cases in which they have, or have been, returned; or (b) when provided for by national legislation, may call on the competent authority of the Member State to start procedures to recover outstanding remuneration without the need for them to introduce a claim in that case. Illegally employed third-country nationals shall be systematically and objectively informed about their rights under this paragraph and under Article 13 before the enforcement of any return decision. 43 See on the expulsion costs also Article 9(3) of the ILO-Convention no. 143 concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers, 1975.

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3. In order to apply paragraph 1(a) and (b), Member States shall provide that an employment relationship of at least three months duration be presumed unless, among others, the employer or the employee can prove otherwise. 4. Member States shall ensure that the necessary mechanisms are in place to ensure that illegally employed third-country nationals are able to receive any back payment of remuneration referred to in paragraph 1(a) which is recovered as part of the claims referred to in paragraph 2, including in cases in which they have, or have been, returned. 5. In respect of cases where residence permits of limited duration have been granted under Article 13(4), Member States shall define under national law the conditions under which the duration of these permits may be extended until the third-country national has received any back payment of his or her remuneration recovered under paragraph 1 of this Article. Content I. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Back payments by employer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Remuneration and transfer costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Substantive provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Procedural provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Residency provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Social security contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. General remarks Article 6 is the central labour law provision of the Directive. It obliges Member States to introduce mechanisms to enable illegally employed third-country nationals in particular to assert their wage claims against employers. It is conceived as a protective provision for the benefit of illegal workers to strengthen their weaker legal position in relation to employers. At the same time, this provision seeks to prevent employers from gaining an economic advantage from illegal employment. For an employer, this can primarily consist in paying comparatively low or no remuneration, against which the illegal employee has little defence, and the evasion of social security contributions and taxes. The Directive thus regulates the illegal worker’s right to claim remuneration and provides him with both substantive and procedural legal mechanisms to help assert his claim. In addition, the Member States are also required to ensure that the employer pays an amount that is commensurate with the taxes and social contributions of a regular employment relationship.44 The financial advantage for the employer could in theory be countered solely through statutory financial sanctions. The proposal was made in the negotiations to wholly dispense with provisions on the claims of illegal workers and apply fines as an unbureaucratic and effective instrument. This approach, however, leaves out of account that granting and strengthening legal rights brings the interests of illegal workers into line with those of government, at least in part. The illegal employee is desirous to lay his claim to remuneration and government is concerned to prevent the employer from gaining benefit from illegal employment. The employer is thus less likely to profit from the economic advantage he seeks. 44 See in this context Article 9 of the ILO-Convention no. 143 concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers, 1975.

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In this connection, a study on behalf of the International Labour Organisation points out that employees avoid approaching the authorities due to their lack of rights. In conclusion, it advocates strengthening victim protection and urging illegal workers to assert their rights.45 This is the intent behind Article 6.

II. Drafting history 6

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Although the basic import of Article 6 outlined under I. was retained in the negotiations, more amendments were made to the article than most other provisions in the proposal. The most important modification concerns the now only optional procedure in Article 6(2)(b), where an illegal employee can turn to a government authority, which then demands payment of the outstanding remuneration, without his having to take legal action himself. This was envisaged as a standard procedure in the proposal. Illegal employees should not be compelled to take legal action. Enforcing their claims to remuneration should be left to a public authority.46 This proposal met with opposition from the large majority of Member States. Government should not be allowed to intervene here in breach of the principle of private autonomy. Instead, they considered it sufficient to provide for specific mechanisms to facilitate the enforcement of a claim to remuneration and adhere otherwise to recourse through civil law. Article 6(2)(a) of the Directive now enables illegal employees to lay claim to their remuneration and enforce a judgment. A new provision was introduced where the amount of remuneration is presumed, thus relieving the illegal employee of the onus of proof (Article 6(1)(a)). The presumption provision on the duration of the employment relationship has, however, been attenuated: Instead of six months, only a three-month duration of employment is presumed (Article 6(3)). Also new is the obligation of the employer to bearany costs for the remittance of the remuneration to the country to which the third-country national has or has been returned to (Article 6(1)(c)). In Article 6(2), a reference to Article 13 and an obligation to inform the illegal employee of his rights have also been added. Article 6(1)(b) has been reworded and now obliges the employer to pay an amount that is commensurate with the tax and social security contributions he would have had to pay if the illegal worker had been legally employed. The draft, in contrast, envisaged the employer paying outstanding taxes and social security contributions. This would have provided the illegal employee with insurance cover, which need not necessarily be the case after the rewording. Article 6(4) (Article 6(3) in the draft) has also been worded a little less strongly. Under the draft, the Member States had to ensure that the remuneration collected by an authority from the employer is paid out to the illegal employee. Under Article 6(4), the Member States are now required to provide mechanisms to ensure that the thirdcountry national can receive his remuneration recovered under Article 6(2). In connection with this, additions have also been made to the recitals. The conditions for granting a right of residence to enforce a remuneration claim have been defined far more restrictively in Article 6(5) than in the proposal (Article 6(4)). The proposal provided for suspending the return of victims of criminal offences under Article 9(1)(c) (particularly exploitative work conditions) until they have received their remuneration. Article 6(5) in conjunction with Article 13(4) now 45 International Labour Office, Trafficking for labour and sexual exploitation in Germany, Report by Cyrus, Geneva 2005, p. 77. 46 In BE, FR, HU, MT and PL public authorities have respective competences, Commission Communication, COM(2014) 286 final, p. 7.

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foresees in individual cases – in line with the Human Trafficking Directive 2004/81/EC – for criminal offences under Article 9(1)(c) (particularly exploitative work conditions) and Article 9(1)(e) (illegal employment of a minor) the possibility of prolonging a right of residence until payment of remuneration, if such right had been granted beforehand for other reasons.

III. Back payments by employer 1. Remuneration and transfer costs The illegal employee has a right to claim remuneration (Article 6(1)(a)) for work 11 done. The term remuneration is defined in Article 2(j). Besides the claim to remuneration, the Member States are obliged under Article 6(1)(c) to grant the illegal employee the right to claim for transfer costs of the outstanding remuneration, also abroad if necessary. To facilitate the enforcement of the illegal employee’s claim, Article 6 makes specific 12 provisions under substantive (see below a.), procedural (see below b.) and residency (see below c.) law. a) Substantive provisions. Generally, the employee seeking to assert his remunera- 13 tion claim bears the burden of proof for the employment relationship and its duration as well as the agreed amount of remuneration. As in most cases this is likely to be particularly difficult for illegal employees for lack of a written contract of employment, the Directive foresees two presumption provisions to facilitate the enforcement of the claim. Each presumption can be refuted through counterevidence. On the one hand, an employment relationship is presumed to last at least three 14 months as per Article 6(3). The proposal originally provided for a period of six months, which was, however, shortened, during negotiations. On the other, the agreed remuneration presumed under Article 6(1)(a) amounts to at least the minimum wage, the rate set in collective agreements or in accordance with established practice in the relevant occupational branch. b) Procedural provisions. The Member States are obliged under the first sentence of 15 Article 6(2), to provide effective procedures for enforcing remuneration and transfer cost claims. Due account must be taken of Article 13 when enacting appropriate mechanisms. The Member States are bound to enact the first procedural facility (Article 6(2)(a)). 16 The illegal employee must be afforded the means to assert his claim to all outstanding remuneration, including the means to enforce a judgment, possibly also after the third-country national has or has been returned to the country of origin. It is sufficient here to afford access to legal recourse in the courts of a Member State. There must, however, be no legal or actual obstacles to access, since this would preclude effective procedure. The claim can be subject to a limitation period set by the Member States. So as not to undermine the effectiveness of the procedure, however, the period set may not be too short. The second procedure (Article 6(2)(b)) has only optional status after the negotiations. 17 Unlike in the proposal, the Member States are thus not obliged to introduce such a procedure. Under Article 6(2)(b)), the government can provide a procedure for laying claim to outstanding remuneration that proceeds automatically and where the thirdcountry national is not compelled to take legal action. A conceivable approach with this sort of procedure could be a labour inspectorate of a Member State which besides

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control rights is also empowered to enforce the wage payment obligation of an employer in favour of the employee. To cater for the requisite effective procedure to enforce the remuneration and transfer cost claims and the evocation of Article 13 when implementing the Directive, the following has to be taken into account: The mechanisms provided for in Article 6 are intended to redress the imbalance between the two opposing parties, the employer on the one hand and the illegal employee with his weaker legal position on the other, at least in part. If it avails itself of Article 6(2)(b), government can act on its own to redress this imbalance or, supplementing the procedure under Article 6(2)(a), it can enable non-governmental agencies to assist illegal employees as a way to mitigate the inequality. In addition, recital 16, third sentence specifies the factors to be considered when implementing the Directive: ‘Member States should, in the context of establishing effective mechanisms to facilitate complaints and if not already provided for by national legislation, consider the possibility and added value of enabling a competent authority to bring proceedings against an employer for the purpose of recovering outstanding remuneration.’ The Member States are allowed considerable scope for implementing the first sentence of Article 6(2). Nevertheless, the added value of the procedural option under Article 6(2)(b) must be at least assessed and the mechanisms chosen from Articles 6 and 13 must be aligned with each other to accomplish the purpose of the Directive in the best possible way. As the end result, the procedure provided for enforcing the claim to remuneration must be actually effective. Under the second subparagraph of Article 6(2), before the enforcement of a return decision, the Member States must ensure that the illegal employees are systematically and objectively informed of their right to lay legal claim to their remuneration under Article 6(2)(a) or possibly have it enforced by an authority under Article 6(2)(b). In accordance with Article 6(4), the Member States must provide mechanisms to ensure that illegal employees can receive their remuneration recovered through the procedures under Article 6(2), also after they have or have been returned to their country of origin. The legislative content of this provision is not immediately apparent, because if the claim is enforced as per Article 6(2)(a), the rightful claimant will presumably receive his remuneration with no difficulty. He can have his remuneration remitted by an assigned lawyer, for example, also after return. The provision should therefore have a greater bearing on the case under Article 6(2)(b), where enforcement is not carried out by the rightful claimant but by the authorities of the Member State. The fourth sentence of recital 14 specifies that the Member States are not obliged to pay remuneration in place of the employer. The second sentence of recital 16 makes plain that the Member States are not bound to involve their missions or representations in third countries to meet the requirements of Article 6(4). c) Residency provisions. Under Article 6(5), the validity of an authorisation for stay issued under Article 13(4) may be prolonged until the third-country national has received his remuneration. The criteria for this extension are to be set by the Member States.

2. Social security contributions 24

Besides remuneration, the employer must under Article 6(1)(b) be obliged to pay an amount commensurate with social security contributions as would be due in the case of a regular employment relationship. The Commission proposal still provided for the 858

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payment of social security contributions. This wording would have meant insuring illegal employees under the social security systems in Member States, resulting in related benefit entitlements.47 Under the reworded provision, this obligation no longer holds. The intention of the Commission to protect illegal employees under social security provisions has therefore been abandoned.48 Conversely, however, this does not rule out the inclusion in national social security systems. Recital 14, for example, cites the need for employers to pay outstanding taxes and social security contributions.

Article 7 Other measures 1. Member States shall take the necessary measures to ensure that employers shall also, if appropriate, be subject to the following measures: (a) exclusion from entitlement to some or all public benefits, aid or subsidies, including EU funding managed by Member States, for up to five years; (b) exclusion from participation in a public contract as defined in Directive 2004/18/ EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts(12) for up to five years; (c) recovery of some or all public benefits, aid, or subsidies, including EU funding managed by Member States, granted to the employer for up to 12 months preceding the detection of illegal employment; (d) temporary or permanent closure of the establishments that have been used to commit the infringement, or temporary or permanent withdrawal of a licence to conduct the business activity in question, if justified by the gravity of the infringement. 2. Member States may decide not to apply paragraph 1 where the employers are natural persons and the employment is for their private purposes. Content I. General remarks and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1. Exclusion from entitlement to public benefits and recovery of such benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2. Exclusion from participation in a public contract . . . . . . . . . . . . . . . . . . . . . . . . 9 3. Closure of establishments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 III. Exception. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

I. General remarks and drafting history Employers who illegally employ third-country nationals should not benefit from 1 public funds. For this purpose Article 7 provides for the exclusion from entitlement to public benefits and, where applicable, their recovery and for the exclusion from 47 In some Member States, illegal employees cannot receive social insurance. On this, see: Hildebrand, in: Evangelischer Pressedienst, Dokumentation, No. 8/98, Migranten in irregula¨ren Situationen (Migrants in irregular situations). On the legal position in the Member States, see also: Commission Impact Assessment, SEC(2007) 603, p. 119. 48 Concerning social security Article 9(1) of the ILO-Convention no. 143 provides for equal treatment of illegal migrant workers with nationals. (12) OJ 2004 L 134/114.

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participation in public contracts. In serious cases, establishments may additionally be closed and required licences may be withdrawn. 2 This rule is binding. Member States must provide for the options for applying sanctions cited in Article 7(1). This follows from the text of the first clause, according to which Member States are to take necessary measures. Although several Member States wished to have the measures be provided for only on an optional basis, they were unable to gain sufficient support for this during the negotiations. 3 The authorities of the Member States retain a margin of discretion in the actual application of the sanctions. This follows from the text of the second clause, under which employers shall ‘also, if appropriate, be subject to the following measures’, and from the text of the individual letters. 4 All of these sanctions were already contained in the proposal. The wording was merely reformulated in places during the negotiations to be more precise. In Article 7(1)(a), the exclusion from EU funding was supplemented. It was clarified in both Article 7(1)(a) and Article 7(1)(c) that the exclusion did not mandatorily have to be from all public funds but rather that the exclusion from just some public funds is also possible. Authorities of Member States may thus be allowed some discretion in connection with Article 7(1)(a) and Article 7(1)(c). A reference to Directive 2004/18/ EC (Public procurement)49 was incorporated into Article 7(1)(b). The withdrawal of the licence that is required for conducting the business activity in question was also added to Article 7(1)(d), on top of the closure of the establishment. Further, the closure of the establishment may be temporary or permanent and may be undertaken if justified by the gravity of the infringement. Discretionary elements were incorporated here as well.

II. Sanctions 1. Exclusion from entitlement to public benefits and recovery of such benefits According to Article 7(1)(a), employers may (see above MN 2), in the event of illegal employment, be excluded from entitlement to all public benefits, aid or subsidies. These terms are not expressly defined in the Directive. It is additionally not possible to clearly differentiate them from one another. The wording suggests that the intention was to achieve the greatest possible exclusion from entitlement to public funds. As with the aids identified in Article 107 TFEU, these terms have in common that recipients are given a gratuitous economic benefit. It is irrelevant whether this benefit takes the form of direct payments or the release from financial obligations. In addition, recital 18 expressly cites agricultural subsidies as well. 6 The exclusion also covers EU funding that is managed by Member States. Such funds include in particular funding from the European Regional Development Fund, the European Social Fund and the Cohesion Fund. 7 The exclusion from entitlement to benefits can be to some or to all benefits and may last for up to five years. Member States thus have a margin of discretion when laying down actual sanctions. Member States are however required to set the framework when they implement the Directive (see above MN 2). 8 In accordance with Article 7(1)(c), funding that was granted within the twelve months preceding the detection of illegal employment may be recovered. 5

49 Directive 2004/18/EC (OJ 2004 L 134/114) on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts. Directive 2004/18/EC will be replaced by Directive 2014/24/EU by 18 April 2016.

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2. Exclusion from participation in a public contract Under Article 7(1)(b), employers may be excluded for up to five years from 9 participation in a public contract as defined in Directive 2004/18/EC (Public procurement). The scope of Article 7(1)(b) is clearly established by the reference to said Directive. However there are numerous points in the scope of the Directive 2004/18/ EC (Public procurement) that must be taken into account such as the threshold amounts for public contracts (Article 7) and the excluded contracts (Article 12 to Article 18). Member States are free to confine themselves to the exclusion from participation in public contracts that fall within the scope of Directive 2004/18/EC (Public procurement) or to go beyond this, since the sanctions set forth in the Directive are only minimum standards.

3. Closure of establishments The closure of establishments and the withdrawal of licences are to be provided for 10 as additional sanctions (Article 7(1)(d)). In this connection, only those establishments that have been used for illegal employment may be considered for closure. Likewise, only those licences for the business activity whereby the illegal employment took place may be withdrawn. The closure of an establishment and the withdrawal of a licence may be temporary or 11 permanent when justified by the gravity of the infringement. The application of a sanction must be proportionate to the specific infringement. Article 7 does not provide criteria for this. However the offences set forth in Article 9(1) could serve as a guide. Infringements that bring a penalty for a criminal offence should also be sufficiently serious for the purposes of Article 7(1)(d). In other respects, it is left to the Member States to specify the details.

III. Exception In accordance with Article 7(2), sanctions do not have to be provided for in the case of 12 natural persons who illegally employ third-country nationals for their private purposes. An example here would be domestic help. This is, on the one hand, surprising, given that in its Impact Assessment, the Commission cites private households as one of the main areas where illegal employment occurs.50 On the other hand, this exception is understandable in view of the concrete sanctions set forth in Article 7(1). There would probably be no instances where Article 7(1)(b) and Article 7(1)(d) would apply anyway. On the other hand however, applying Article 7(1)(a) and Article 7(1)(c) to a family that employs domestic help on an illegal basis could result in the family being excluded from government family benefits when the term ‘all public benefits’ is understood correspondingly broadly. Member States do not have to go that far.

Article 8 Subcontracting 1. Where the employer is a subcontractor and without prejudice to the provisions of national law concerning the rights of contribution or recourse or to the provisions 50

Commission Impact Assessment, SEC(2007) 603, p. 7.

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of national law in the field of social security, Member States shall ensure that the contractor of which the employer is a direct subcontractor may, in addition to or in place of the employer, be liable to pay: (a) any financial sanction imposed under Article 5; and (b) any back payments due under Article 6(1)(a) and (c) and Article 6(2) and(3). 2. Where the employer is a subcontractor, Member States shall ensure that the main contractor and any intermediate subcontractor, where they knew that the employing subcontractor employed illegally staying third-country nationals, may be liable to make the payments referred to in paragraph 1 in addition to or in place of the employing subcontractor or the contractor of which the employer is a direct subcontractor. 3. A contractor that has undertaken due diligence obligations as defined by national law shall not be liable under paragraphs 1 and 2. 4. Member States may provide for more stringent liability rules under national law. Content I. II. III. IV. V. VI.

General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Liability under Article 8(1) and (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exemption from liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope for stricter liability regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 7 9 10 11

I. General remarks In practice, it is often difficult to assert a wage claim of an illegal employee against an employer, where the employer is a subcontractor. Subcontracting is particularly common in the construction industry, where subcontractors contract others, resulting in entire subcontractor chains. Not infrequently in the case of liability, the subcontractor at the end of the chain can no longer be brought to account. The introduction of socalled main contractor liability is a suitable and adequate means of dealing with this problem.51 2 In a resolution of 26 March 2009, the EP therefore presses for the introduction of main contractor liability.52 A study by the International Labour Office also recommends its introduction to help illegal employees enforce their remuneration claims.53 In the case of Wolff & Mu¨ller, the EJC decided that main contractor liability in the German law on the posting of workers was compatible with Community law54 and found that it served employee protection and the general interest.55 This is why Article 8 extends the range of those to be held liable for remuneration claims by employees and for certain claims by government. Under certain circumstances, the main contractor or intermediary subcontractors can be made liable. 1

51 On existing legislation in the Member Sates: Houwerzijl/Peters, Liability in subcontracting processes in the European construction sector (European Foundation for the Improvement of Living and Working Conditions, 2008). 52 European Parliament resolution of 26 March 2009 on the social responsibility of subcontracting undertakings in production chains, EP doc. P6_TA(2009)0190. 53 Cyrus, Trafficking for labour and sexual exploitation in Germany (International Labour Office, 2005), p. 84. 54 ECJ, Wolff & Mu ¨ ller, C-60/03, EU:C:2004:610, para 45. 55 Ibid., para 36.

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In the meantime, provisions on subcontractor liability have been included in further 3 Union legislation. Article 12 of Directive 2014/67/EU on the enforcement of the posting of workers Directive56 contains a quite elaborated provision on joint and several liability as well as Article 17 Seasonal Workers Directive 2014/36/EU.

II. Drafting history Liability in awarding subcontracts was considerably moderated in the course of 4 negotiations.57 The Commission proposal for the Directive envisaged unlimited joint and several liability for the main contractors, intermediary subcontractors and employing subcontractors. In the course of negotiations, a differentiated liability regime was agreed on as a compromise. Under this, the contractor is generally held liable in addition to or in place of the employing subcontractor. The main contractor and any intermediary subcontractors are only liable when they had actual knowledge of illegal employment by the employing subcontractor. The exculpatory provision in Article 8(3) was not originally intended. The French Presidency proposed the liability of the client for the main contractor 5 employing third-country nationals illegally.58 But this proposal was rejected by the majority of the Member States. This article was very important for the EP. At least the Employment Committee 6 opposed changes and hence endorsed the strict provisions on liability in the Commission draft.59 In the informal trialogue, however, the chief parliamentary negotiators from the LIBE Committee accepted the Council’s compromise. This prompted disagreements in EP and caused delays in the adoption of the Directive text.60 On adoption of the Directive, EP and the Council issued a joint statement stipulating that the wording of the provision would have no prejudicial bearing on main contractor liability in future legislation.61

III. Liability under Article 8(1) and (2) The liability provisions in Article 8 only obtain when the employer of the illegal 7 employee is a subcontractor. They do not apply when the employer is the main contractor. Therefore, the client is not affected by the provision. A contractor is generally liable under Article 8(1) for a direct subcontractor who infringes the prohibition on illegal employment. In this case, a direct contractual relationship exists between the employer of the illegal employee and the liable contractor. The enterprises directly succeed each another in the chain of subcontractors. Under Article 8(2), the main contractor and possible intermediary subcontractors can also be held liable. This is, however, only the case when they knew that the subcontractor employed third-country nationals staying illegally.

56 Directive 2014/67/EU (OJ 2014 L 159/11) on the enforcement of Posted Workers Directive 96/71/ EC. On joint and several liability in the context of the posting of workers: Schierle, ‘96/71/EC: Posting of Workers’, in: Schlachter (ed.), EU Labour Law (Wolters Kluwer, 2015), p. 192. 57 Critical on the result: ETUC, Press release of 4 February 2009, available at: http://www.etuc.org/a/ 5801 [last access: 28 February 2015]. 58 Council doc. 10770/08 of 18 June 2008, p. 7. 59 EP doc. A6-0026/2009 of 27 January 2009, p. 26. 60 Council doc. 6039/09 of 10 February 2009, p. 4. 61 Council doc. 8917/09 of 8 May 2009, p. 3.

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The contractors included under Article 8(1) and (2) are liable ‘in addition to or in place of’ the employer of the illegal employee. The original wording, joint and several liability, was rejected in the course of negotiations. The Member States are thus neither obliged to grant the illegal employee the means to proceed against the contractors as joint and several debtors nor to afford him direct access to the complete chain. Rather, access to the chain can be made contingent on whether or not the claim can be enforced against the employer. The Member States are thus left with broad leeway in implementation. This is also incidentally explicitly without prejudice to national legal provisions on rights of compensation and recourse and social security. It is left up to the Member States, for example, whether a liable contractor can claim redress against the employer of an illegal employee.

IV. Exemption from liability 9

Under Article 8(3), the Member States can impose due diligence obligations under national law, which if met provide exemption from liability under Article 8(1) and (2). A conceivable approach would, for example, be so-called pre-qualification procedures, where the selection of a reliable contractor approved by government is grounds for exemption from liability. The Member States are not, however, obliged to provide for this kind of liability exemption.

V. Scope of liability 10

Liability comprises on the one hand financial sanctions, especially fines, under Article 5 and on the other the remuneration of the employee as per Article 6(1)(a), including possible transfer costs under Article 6(1)(c). In accordance with recital 20, the remuneration also comprises contributions to national holiday pay and social funds. Not included, however, are taxes and social security contributions as per Article 6(1)(b). The reference in Article 8(1)(b) to Article 6(2) and(3) does not, however, have any legislative content beyond this; it simply describes the procedure for enforcing claims to back payments. No provision is made for other claims of possible relevance to liability.

VI. Scope for stricter liability regulations 11

The Member States can in accordance with Article 8(4) require stricter liability provisions under national law. This makes plain that limitations on liability provided for in Article 8(2) and (3) need not necessarily be adopted by the Member States. Since Article 1 already states that the Directive only lays down minimum common standards, Article 8(4) is for purposes of clarification only (see above Article 1 MN 14).

Article 9 Criminal offence 1. Member States shall ensure that the infringement of the prohibition referred to in Article 3 constitutes a criminal offence when committed intentionally, in each of the following circumstances as defined by national law: (a) the infringement continues or is persistently repeated; (b) the infringement is in respect of the simultaneous employment of a significant number of illegally staying third-country nationals; 864

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(c) the infringement is accompanied by particularly exploitative working conditions; (d) the infringement is committed by an employer who, while not having been charged with or convicted of an offence established pursuant to Framework Decision 2002/629/JHA, uses work or services exacted from an illegally staying third-country national with the knowledge that he or she is a victim of trafficking in human beings; (e) the infringement relates to the illegal employment of a minor. 2. Member States shall ensure that inciting, aiding and abetting the intentional conduct referred to in paragraph 1 is punishable as a criminal offence. Content I. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Criminal offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Persistently repeat or continue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Significant number. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Particularly exploitative working conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Victim of trafficking in human beings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Minors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 6 13 14 16 17 18 20

I. General remarks The establishment of criminal penalties was a key aim of the proposal. The Commis- 1 sion felt that administrative fines alone did not have sufficient deterrent value to ensure the achievement of the Directive’s objectives.62 The provisions were however the subject of dispute within the Council. In particular, the Community’s competence for regulating criminal penalties in connection with this Directive was called into question.63 The Directive was adopted before the Treaty of Lisbon entered into force. Therefore 2 the question of the Community‘s competence in this matter had to be assessed under the Treaty of Nice. In their examination of the legal situation under the Treaty of Nice, the Member States were initially of the opinion that criminal-law provisions should be left to judicial cooperation within the framework of the third pillar of the Treaty on European Union. However, the ECJ ruled that the Community has an ancillary competence for adopting criminal laws when such provisions are necessary in order to ensure that the rules that have been adopted are fully effective.64 According to this ruling, the application of effective, proportionate and dissuasive sanctions must constitute an essential measure for combating serious impairment of Community policy.65 Further, the ECJ ruled that although the punishability of an offence may be regulated, the type and level of the penalty may not.66 The Treaty of Lisbon codified this competence in Article 83(2) TFEU and expanded it by adding the option of establishing minimum rules for sanctions.67 62

Commission Proposal, COM(2007) 249 final, p. 10. On the Community’s competence: Ho¨rich, ‘Die Sanktionsrichtlinie: Zu¨ndstoff zwischen EuGH und BVerfG?’ Zeitschrift fu¨r Ausla¨nderrecht und Ausla¨nderpolitik (2010), p. 49. 64 ECJ, Commission v Council, C-176/03, EU:C:2005:542; ECJ, Commission v Council, C-440/05, EU:C:2007:625; Commission Communication, COM (2005) 583 final; Council doc. 6466/06 of 16 February 2006. 65 ECJ, Commission v Council, C-440/05, EU:C:2007:625, para 66. 66 ECJ, Commission v Council, C-440/05, EU:C:2007:625, para 70. 67 Article 83(2) TFEU refers specifically to the ‘definition of criminal offences and sanctions’. See in this regard also: Zimmermann, ‘Mehr Fragen als Antworten: Die 2. EuGH-Entscheidung zur Strafrechtsharmonisierung mittels EG-Richtlinien (Rs. C-440/05)’, Neue Zeitschrift fu¨r Strafrecht 12 (2008), p. 662. 63

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Some Member States doubted that criminal rules and regulations were actually necessary in order to achieve the aim of the Directive. The Commission’s Impact Assessment showed the scale of illegal immigration and outlined the link between illegal immigration and the possibility of illegal employment. It cited the negative effects of illegal employment. Its remarks on the necessity of criminal sanctions are however brief. The Impact Assessment did not substantiate the view that other types of sanctions do not have sufficient deterrent value. According to the Impact Assessment, the advantage of harmonised sanctions – in addition to deterrence – is that this establishes ‘a more level playing field’ because employers throughout Europe would be subject to the same minimum sanctions.68 However the types and levels of the sanctions are not being harmonised, with the result that this objective can be achieved only in part. Nineteen Member States already provide for criminal sanctions in this area.69 Thus the Directive achieves harmonisation in that criminal sanctions must be introduced in eight further Member States and certain offences must be penalised in all Member States. 4 The Council Legal Service was of the opinion that criminal penalties are permissible in the Directive. It did not however express a view on the question of necessity in connection with the Directive.70 The Council Working Party on Substantive Criminal Law was unable to agree on a common position regarding the necessity of criminal penalties. Instead, it refrained from taking a position and noted that this question was to be answered by the Justice and Home Affairs Council.71 In the end, a qualified majority in the Council answered the question of the necessity of criminal penalties in the affirmative. Recital 21 elaborates: 3

‘Experience has shown that the existing systems of sanctions have not been sufficient to achieve complete compliance with prohibitions against the employment of illegally staying third-country nationals. One of the reasons is that administrative sanctions alone are likely not to be enough to deter certain unscrupulous employers. Compliance can and should be strengthened by the application of criminal penalties.’

5

In statements for the minutes, Finland, Hungary, Poland and Sweden expressed their opposition to the introduction of criminal sanctions. They held that the necessity of criminal sanctions had not been established and therefore preferred wording that would have placed the introduction of criminal sanctions at the Member States’ discretion.72

II. Drafting history Several amendments were made to Article 9(1). Two insertions were made in the introductory sentence. The insertion of ‘each of’ before ‘the following circumstances’ was probably undertaken for clarity. The addition of ‘as defined by national law’ at the end indicates that the Member States still retain a margin of discretion in their implementation. 7 In the original version, Article 9(1)(a) provided for criminal liability when the infringement is repeated after competent national authorities or courts have within the past two years made two previous findings that the employer has infringed the prohibition on illegal employment. This wording is, on the one hand, detailed because it lays down the period of time and frequency of the infringements. On the other hand however it was not sufficiently specific. For example, it was not clear which form a 6

68

Commission Impact Assessment, SEC(2007) 603, p. 37. Commission Impact Assessment, SEC(2007) 603, p. 9. 70 Council doc. 14655/07 of 5 November 2007, p. 7. 71 Council doc. 5933/08 of 6 February 2008, p. 4. 72 Council doc. 8917/09 of 8 May 2009, p. 2. 69

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finding that the prohibition against illegal employment has been infringed has to take. Furthermore, the text did not indicate whether the date of the act or the date of the finding should be used for determining the reference period for the repeated infringement. In light of this, the Council Working Party on Substantive Criminal Law requested that the provision be reworded.73 As a result, the frequency of the infringements and the time period during which they occurred were deleted. The wording ‘persistently repeated’ was chosen. The alternative element – ‘continues’ – came from the European Parliament. According to the Commission proposal, the element ‘significant number’ would be satisfied when at least four third-country nationals are illegally employed. The final version of the Directive does not state a specific number of persons. Several Member States considered it disproportionate to set criminal liability at just four illegally employed persons. The Council Working Party on Substantive Criminal Law was of the opinion that a specific number should not be set.74 It also proposed retaining the wording ‘simultaneous employment of several’ for clarification purposes. The element ‘simultaneous’ was adopted while ‘significant number’ was retained. An alternative element was discussed but subsequently rejected. According to this alternative, a significant number would also be given when at least 50 per cent of the employees are illegally employed.75 Article 9(1)(c) originally stated that particularly exploitative working conditions would be given when for example there was a significant difference in working conditions from those enjoyed by legally employed workers. This example was deleted. In its place, a definition of particularly exploitative working conditions was inserted at Article 2(i). This definition is based on a ‘striking disproportion’. The Council Working Party on Substantive Criminal Law considered this provision not to be expedient and recommended its deletion.76 This request was not taken up by the lead Council Working Party on Migration and it would probably not have been possible to justify it to the Parliament which had submitted a proposal of its own for the text of this provision.77 The proposed text also named ‘violence, threats, intimidation and degrading treatment’ as forms of particularly exploitative working conditions. To avoid overlaps in the scope of Article 9(1)(d) with the Council Framework Decision 2002/629/JHA (Trafficking in human beings),78 the wording of this constituent element was supplemented to the effect that it was aimed at employers ‘who, while not having been charged with or convicted of an offence established pursuant to Framework Decision 2002/629/JHA’. The Council originally proposed the deletion of this provision at the request of the Council Working Party on Substantive Criminal Law. This element was re-incorporated at the request of the Parliament. The Council and the Parliament were agreed that the illegal employment of minors should be included as a criminal offence in Article 9(1)(e).79 The proposal did not contain this provision. The criminal liability of participation in Article 9(2) was re-worded. In the proposal, ‘participation’ and ‘instigation’ are to be penalised. The word ‘participation’ was replaced with ‘aiding’ and ‘abetting’ in the final version. 73

Council doc. 5933/08 of 6 February 2008, p. 6. Council doc. 5933/08 of 6 February 2008, p. 7. 75 Council doc. 11000/08 of 3 July 2008, p. 5. 76 Council doc. 5933/08 of 6 February 2008, p. 7. 77 European Parliament, Draft Report of the Committee on Civil Liberties, Justice and Home Affaires of 4 July 2008, PE409.510, Amendment 39. 78 Council Framework Decision of 19 July 2002 on combating trafficking in human beings (OJ 2002 L 203/1). 79 Council doc. 7988/08 of 14 April 2008, p. 17; European Parliament, PE409.510, Amendment 41. 74

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III. Criminal offences 13

A prerequisite for all criminal offences is the intentional infringement of the prohibition against illegal employment referred to in Article 3(1). In addition, the exclusion from liability provided for under Article 4(3) when the employer has fulfilled his control, documentation and reporting obligations in accordance with Article 4(1) must not be given. Under Article 9(2), the Member States are to penalise the inciting and aiding of a criminal offence according to Article 9(1) as well as the abetting of such criminal offence.

1. Persistently repeat or continue ‘Persistently repeat’ (Article 9(1)(a) assumes on the one hand that illegal employment has already taken place in the past. It is not necessary that the infringement have been previously noticed or prosecuted by the authorities. On the other hand, simply repeating the infringement is not sufficient to satisfy this element of the offence. The perpetrator must exhibit a certain degree of persistence with which he expresses a heightened indifference to the prohibition. 15 The alternative element of this offence, ‘continues’ additionally covers cases in which the perpetrator does not commit any further infringements but rather continues to commit the initial infringement. An infringement on its own is however not sufficient. It is necessary that the perpetrator had occasion to rethink his behaviour and he nonetheless continued the deed. It is also conceivable that the illegal employment occurred over a long period. Crucial in this alternative as well is that the perpetrator must exhibit heightened disregard of the prohibition. 14

2. Significant number 16

This constituent element of the offence requires the simultaneous employment of a significant number of illegally staying third-country nationals (Article 9(1)(b)). The question of what a significant number is was deliberately left open. The Member States thus have some margin of discretion for defining this vague legal term with greater specificity. The insertion of ‘as defined by national law’ in the introductory sentence in Article 9(1) also points to this margin of discretion. The purport of the term ‘significant’ however places a limitation on the Member States’ margin of discretion in connection with the Directive’s implementation.

3. Particularly exploitative working conditions 17

This element is given when the illegal employment is accompanied by particularly exploitative working conditions (Article 9(1)(c)). The term ‘particularly exploitative working conditions’ is defined at Article 2(i). According to this definition, the working conditions must exhibit a ‘striking disproportion’ compared with those of legally employed workers. Endangering the health or safety of the workers and offending their human dignity are cited as examples.

4. Victim of trafficking in human beings 18

This element penalises the illegal employment of victims of trafficking in human beings (Article 9(1)(d)). The requirement for penalisation is that the employer had knowledge that the person is a victim of trafficking in human beings. Article 1(1) of the 868

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Council Framework Decision 2002/629/JHA (Trafficking in human beings) lays down who is a victim of trafficking in human beings. The employer must additionally have used the work or services exacted from the person. In order to avoid overlaps with the criminal liability pursuant to the Council 19 Framework Decision 2002/629/JHA (Trafficking in human beings), this element can only be applied when the employer has not been charged with or convicted of an offence pursuant to the Council Framework Decision. Recital 23 thus states that the Directive should be without prejudice to the Council Framework Decision.

5. Minors The illegal employment of minors is also punishable (Article 9(1)(e). It is left to 20 national law to define who minors are.

Article 10 Criminal penalties 1. Member States shall take the necessary measures to ensure that natural persons who commit the criminal offence referred to in Article 9 are punishable by effective, proportionate and dissuasive criminal penalties. 2. Unless prohibited by general principles of law, the criminal penalties provided for in this Article may be applied under national law without prejudice to other sanctions or measures of a non-criminal nature, and they may be accompanied by the publication of the judicial decision relevant to the case. Content I. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Criminal penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 5

I. General remarks Article 10 supplements Article 9 with regard to the criminal liability of natural 1 persons. It lays down that Member States must provide for criminal penalties against natural persons who commit the criminal offence referred to in Article 9.

II. Drafting history Article 10(1) establishes that this rule applies to natural persons. This clearly 2 delineates the scope of Article 10 vis-a`-vis Articles 11 and 12 which apply to legal persons. Although the Council recommended deleting Article 10(2) or moving it to a recital,80 3 this provision was retained under pressure from EP but was reworded. The proposal stipulated that the criminal sanctions provided for in this article may be accompanied by other sanctions or measures, in particular those provided for in Articles 6, 7 and 8 of the proposal. The current Directive states that criminal penalties may be applied under national law without prejudice to other sanctions or measures of a non-criminal 80

Council doc. 14617/08 of 22 October 2008, p. 14.

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nature. The reference to Articles 6 to 8 of the draft directive was omitted. It additionally states that Member States may provide for criminal and non-criminal sanctions alongside one another but that they do not necessarily have to be imposed for the same act. The Council Working Party discussed whether the provision might otherwise be in breach of the prohibition on being tried or punished twice in criminal proceedings for the same criminal offence (ne bis in idem).81 The Council Working Party viewed the coexistence of ‘financial penalties’ under Article 6(2)(a) of the proposal with criminal penalties particularly critically.82 4 The subsequent insertion of ‘unless prohibited by general principle of law’ at the start of Article 10(2) refers not only to the above-mentioned ne bis in idem principle but also to the publication of sentences provided for in Article 10(2). It was discussed in this connection whether publication would be in line with the fundamental right to the protection of one’s personal data arising from Article 8 ECHR and Article 8 EuChFR. In this connection, in a statement for the minutes regarding this Directive, Germany drew attention to the consequences that Article 6 TEU (Nice version), would have for the institutions of the EU, and for the Member States when they come to transpose the Directive into law.83

III. Criminal penalties Article 10(1) requires Member States to provide for effective, proportionate and dissuasive criminal penalties for natural persons who commit one of the criminal offences referred to in Article 9. The wording ‘effective, proportionate and dissuasive’ is a standard formulation that is to be found in numerous acts.84 The type and extent of the penalty is left to the Member States, provided that it is effective, proportionate and dissuasive. 6 Under Article 10(2), Member States may provide for other sanctions or measures of a non-criminal nature in addition to criminal penalties. These would include the sanctions under Articles 5 and 6 and the measures under Article 7, even though the explicit reference was dropped. The ne bis in idem principle arising from Article 4 Protocol no. 7 ECHR and Article 50 EuChFR sets limits in this connection. In addition, Member States may publish relevant judicial decisions. Member States are free to introduce these rules and, if necessary, elaborate them under national law. The fundamental right to the protection of one’s personal data under Article 8 ECHR and Article 8 EuChFR is to be observed as a boundary in this connection. 5

Article 11 Liability of legal persons 1. Member States shall ensure that legal persons may be held liable for the offence referred to in Article 9 where such an offence has been committed for their benefit by any person who has a leading position within the legal person, acting either individually or as part of an organ of the legal person, on the basis of: 81 On Article 4 Protocol no. 7 ECHR (ne bis in idem): Grabenwarter, European Convention of Human Rights Commentary (C.H. Beck 2014), p. 436. 82 Council doc. 9322/08 of 26 May 2008, p. 19 et seq. 83 Council doc. 8917/09 of 8 May 2009, p. 3. 84 See as an example Article 5 of Directive 2008/99/EC on the protection of the environment through criminal law, OJ 2008 L 328/28.

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(a) a power of representation of the legal person; (b) an authority to take decisions on behalf of the legal person; or (c) an authority to exercise control within the legal person. 2. Member States shall also ensure that a legal person may be held liable where the lack of supervision or control, by a person referred to in paragraph 1, has made possible the commission of the criminal offence referred to in Article 9 for the benefit of that legal person by a person under its authority. 3. Liability of a legal person under paragraphs 1 and 2 shall not exclude criminal proceedings against natural persons who are perpetrators, inciters or accessories in the offence referred to in Article 9. Content I. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Liability of legal persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2

I. General remarks Article 11 governs the liability of legal persons for criminal offences under Article 9 1 which their employees committed for the benefit of that legal person. Identical provisions are also to be found in other acts.85 This provision was only slightly edited during the negotiations for the purpose of adapting it.

II. Liability of legal persons Under Article 11(1), the liability of legal persons is subject to the following condi- 2 tions: First, the entity must be a legal person within the meaning of Article 2(g). Second, a natural person who holds a leading position within the legal person must additionally be the perpetrator of an offence within the meaning of Article 9. The criterion for defining a leading position can be, for example, the essentially autonomous performance of entrepreneurial tasks on one’s own responsibility. Third, the criminal offence must have been committed for the benefit of the legal person. In the case of criminal offences within the meaning of Article 9, the benefit for the legal person probably consists as a rule of them profiting from the services or work of illegally employed persons. In this connection it is irrelevant whether the perpetrator acted alone or as part of a body of the legal person. Fourth, the act must have been committed on the basis of a power of representation (Article 11(1)(a)), an authority to take decisions on behalf of the legal person (Article 11(1)(b)) or an authority to exercise control within the legal person (Article 11(1)(c)). According to Article 11(2), a legal person may also be held liable when a natural 3 person who does not hold a leading position commits the criminal offence. This requires that a person in a leading position within the meaning of Article 11(1) who is the superior of the perpetrator does not fulfil their duty to supervise or control the perpetrator or does not fulfil said duty sufficiently. This rule is intended to prevent legal persons from evading penalties when, for example, management did not hire the illegal 85 Directive 2009/123/EC (OJ 2009 L 280/52) amending Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements; Directive 2008/99/EC (OJ 2008 L 328/28) on the protection of the environment through criminal law; Council Framework Decision 2008/913/JHA (OJ 2008 L 328/55)on combating certain forms and expressions of racism and xenophobia by means of criminal law.

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employees itself and possibly does not even know of the specific cases but tolerates illegal employment on a de facto basis within the enterprise. 4 Article 11(3) states that the liability of a legal person does not exclude criminal proceedings against natural persons as perpetrators of, inciters to or accessories in an offence referred to in Article 9.

Article 12 Penalties for legal persons Member States shall take the necessary measures to ensure that a legal person held liable pursuant to Article 11 is punishable by effective, proportionate and dissuasive penalties, which may include measures such as those referred to in Article 7. Member States may decide that a list of employers who are legal persons and who have been held liable for the criminal offence referred to in Article 9 is made public. Content I. General remarks and drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Penalties for legal persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3

I. General remarks and drafting history Article 12 supplements Article 11 with regard to the liability of legal persons. Member States must provide for effective, proportionate and dissuasive penalties for legal persons who are liable under Article 11. 2 This provision was modified somewhat during the course of the negotiations. Under the Commission proposal, Member States would be required to provide for ‘criminal or non-criminal fines’. In addition, the proposal cited as an example a list of measures resembling the other measures in Article 7. The formulation ‘criminal or non-criminal fines’ is no longer contained in the Directive. The list was replaced with a reference to the example provided by the measures referred to in Article 7. The Council Working Party on Substantive Criminal Law advocated aligning the formulation with Directive 2008/99/EC86 which was being negotiated parallel to this Directive. This would have resulted in the reference to the types of penalties and the list being dropped without any replacement. However, at the request of the European Parliament, the reference to Article 7 was incorporated instead of the list. In addition, the EP insisted on the insertion of the second sentence. This prompted Germany to issue a critical statement for the minutes when the Directive was adopted.87 1

II. Penalties for legal persons 3

The prerequisite for imposing penalties on legal persons is that they must be liable pursuant to Article 11. Member States are required to provide for effective, proportionate and dissuasive penalties. The wording leaves open whether the penalties are to be criminal or non-criminal. Recital 23 states that Member States are in any case not obliged to provide for criminal penalties against legal persons. Penalties may also expressly include the other measures cited in Article 7. 86

Directive 2008/99/EC (OJ 2008 L 328/28) on the protection of the environment through criminal

law. 87

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Under the second sentence of Article 12, Member States may make public a list of 4 legal persons who have been held liable for illegal employment pursuant to Article 11. Member States are not however required to do so.

Article 13 Facilitation of complaints 1. Member States shall ensure that there are effective mechanisms through which third-country nationals in illegal employment may lodge complaints against their employers, directly or through third parties designated by Member States such as trade unions or other associations or a competent authority of the Member State when provided for by national legislation. 2. Member States shall ensure that third parties which have, in accordance with the criteria laid down in their national law, a legitimate interest in ensuring compliance with this Directive, may engage either on behalf of or in support of an illegally employed third-country national, with his or her approval, in any administrative or civil proceedings provided for with the objective of implementing this Directive. 3. Providing assistance to third-country nationals to lodge complaints shall not be considered as facilitation of unauthorised residence under Council Directive 2002/90/ EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence(13). 4. In respect of criminal offences covered by Article 9(1)(c) or (e), Member States shall define in national law the conditions under which they may grant, on a case-bycase basis, permits of limited duration, linked to the length of the relevant national proceedings, to the third-country nationals involved, under arrangements comparable to those applicable to third-country nationals who fall within the scope of Directive 2004/81/EC. Content I. II. III. IV. V.

General remarks and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Complaints against employers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Engagement of third parties in administrative or civil proceedings . . . . . . 10 Exclusion of criminal liability for facilitation of unauthorised residence 11 Residence permit for the duration of the criminal proceedings . . . . . . . . . . . 12

I. General remarks and drafting history Article 13 is a protective rule for illegally employed persons and is particularly related 1 to Article 6. This article grants persons in illegal employment the right to lodge complaints against their employers. Third parties may in support of an illegally employed third-country national join in any administrative or civil proceedings. Victims of particularly exploitative working conditions or minors may be granted a residence permit of limited duration. Article 13 establishes only a minimum level of protection. Under Article 15 Member States may provide for provisions that are more favourable to third-country nationals. The EP considered Article 13 to be one of the most important provisions in the 2 Directive. Accordingly, most of the changes in this article were undertaken at its request. (13)

OJ 2002 L 328/17.

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Text was added at the end of Article 13(1). Trade unions, other associations and a competent authority are cited as examples of third parties.88 The clause ‘when provided for by national legislation’ was also added. 4 Article 13(2) was included at the request of the EP. The wording is largely based on the proposal submitted by the Employment Committee.89 The Committee on Civil Liberties, Justice and Home Affairs had submitted its own proposal for the wording of this paragraph.90 At the Council’s request, third parties were not specified any further and the option of participating in criminal proceedings was deleted. 5 The reference to Directive 2002/90/EC (Facilitation of unauthorised entry)91 was newly added to Article 13(3). The Parliament’s proposal to protect whistleblowers too did not receive sufficient support.92 6 The cases set forth in Article 9(1)(e) were included in Article 13(4) so that illegally employed minors could receive a residence permit of limited duration. The Parliament was unable to win sufficient support for its proposal to also include the cases set forth in Article 9(1)(d).93 3

II. Complaints against employers Under Article 13(1), illegally employed persons may lodge complaints against their employers. They may do this themselves or draw on the help of a third party in this connection. Member States are responsible for designating which third parties may be taken into consideration for this. Trade unions, other associations and even a competent authority are cited as examples of third parties. 8 Article 13 requires Member States to provide for a complaint mechanism of this type. Doubts about this could arise from the insertion ‘when provided for by national legislation’ at the end of Article 13(1). However this insertion refers only to the previously-mentioned examples, in particular the competent authority of the Member State. It was not the intention of the Directive to oblige Member States to establish such an authority. On the other hand, the opening words ‘Member States shall ensure’ refer to the complaint mechanism. This is also indicated by recital 26 which states ‘there should be’ such mechanisms. 9 Complaint mechanisms must be effective. The requirements as to their effectiveness are not specified. 7

III. Engagement of third parties in administrative or civil proceedings 10

Under Article 13(2), third parties may engage in the administrative or civil proceedings of an illegally employed person in connection with the Directive. The Directive does not provide for their engagement in criminal proceedings. The prerequisite for engagement in such administrative or civil proceedings is that the third party must have a legitimate interest in ensuring compliance with this Directive. According to the 88 European Parliament, Report of the Committee on Civil Liberties, Justice and Home Affairs of 27 January 2009, A6-0026/2009, Amendment 41 (EMPL). 89 European Parliament, A6-0026/2009, Amendment 43 (EMPL). 90 European Parliament, Draft Report of the Committee on Civil Liberties, Justice and Home Affairs of 4 July 2008, PE409.510, Amendment 47. 91 Directive 2002/90/EC (OJ 2002 L 328/17) defining the facilitation of unauthorised entry, transit and residence. 92 European Parliament, A6-0026/2009, Amendment 42 (EMPL). 93 European Parliament, PE409.510, Amendment 48.

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wording of Article 13(2), the criteria for this are laid down by Member States in their national law. The approval of the illegally employed person is necessary for a third party’s engagement in administrative or civil proceedings. The third party may engage either on behalf of or in support of an illegally employed third-country national. Article 13(2) requires Member States to provide for the option of engaging in such administrative or civil proceedings.

IV. Exclusion of criminal liability for facilitation of unauthorised residence Under Article 13(3), third parties who provide assistance to illegally employed third- 11 country nationals when lodging complaints may not because of this assistance be prosecuted for facilitation of unauthorised residence under Council Directive 2002/90/ EC (Facilitation of unauthorised entry).

V. Residence permit for the duration of the criminal proceedings Victims of offences under Article 9(1)(c) (particularly exploitative working condi- 12 tions) and Article 9(1)(e) (minors) may be granted a residence permit under Article 13(4). Member States are to lay down the conditions for this in accordance with the criteria set forth in the Human Trafficking Directive 2004/81/EC. The residence permit shall be granted for the duration of the criminal proceedings against the employer. Although this paragraph does not make direct reference to criminal proceedings, the right of residence set forth in the Human Trafficking Directive 2004/81/EC applies to criminal proceedings. In addition, the special rule set forth in Article 6(5) applies to the enforcement of claims for remuneration and would otherwise be superfluous.

Article 14 Inspections 1. Member States shall ensure that effective and adequate inspections are carried out on their territory to control employment of illegally staying third-country nationals. Such inspections shall be based primarily on a risk assessment to be drawn up by the competent authorities in the Member States. 2. With a view to increasing the effectiveness of inspections, Member States shall, on the basis of a risk assessment, regularly identify the sectors of activity in which the employment of illegally staying third-country nationals is concentrated on their territory. In respect of each of those sectors, Member States shall, before 1 July of each year, communicate to the Commission the inspections, both in absolute numbers and as a percentage of the employers for each sector, carried out in the previous year as well as their results. Content I. General remarks and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Article 14 requires Member States to carry out inspections. Thus in addition to preventive measures, sanctions, penalties and employee protection rights, this rule covers yet another important scope of the Directive. The aim here is to increase the effectiveness of the controls and inspections but not necessarily their number. This rule was highly controversial during the negotiations. The Commission’s proposal provided for requiring Member States to inspect every year ten per cent of the enterprises in their territory. The Commission stressed the importance of laying down an ambitious inspection rate several times during the negotiations. This was also logical in view of the Directive’s Impact Assessment: Since the offences that call for penalties or sanctions have already been legislated in most Member States, it viewed inadequate enforcement as the central problem.94 The ten per cent rate was however too high for many Member States. Other Member States rejected quantitative targets entirely. The EP also expressed its opposition to the ten per cent target. The Committee on Civil Liberties, Justice and Home Affairs was in favour of a rate of five per cent of the enterprises in the respective Member State.95 The Committee on Employment and Social Affairs opposed setting a rate.96 The Commission estimated the additional costs for an inspection rate of ten per cent at E 1.14 billion for the Member States and E 190 million for the economy.97 The Commission assumed here that currently some two per cent of the approximately 22 million enterprises in the EU are inspected every year.98 This burden explains the Member States’ reservations in part. In addition, it was argued that the use of quantitative targets might be at the expense of the quality of the inspections.99 Further, Member States are affected to varying degrees by illegal employment and they have different mechanisms for combating illegal employment such as the competences and setting of the competent authority, or the inclusion of the social partners. On the other hand, a rate would have constituted only a minimum target which would have allowed for the different situations in the Member States. In the Directive, the ten per cent inspection rate was replaced by the wording that the Member States shall ensure ‘effective and adequate inspections’. During the negotiations, an inspection rate of five per cent100 and having Member States set a national target rate on an annual basis101 were discussed as possible compromises. The inspections are to be carried out on the basis of a risk assessment. This requirement was watered down somewhat by the use of the word ‘primarily’. This makes it clear that other criteria for laying down the inspections are also permissible. This provision also states that the Member States will conduct the risk assessments. The duty to provide information set forth in Article 14(2) was newly added.

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Commission Impact Assessment, SEC(2007) 603, p. 9 et seq. European Parliament, Draft Report of the Committee on Civil Liberties, Justice and Home Affairs of 4 July 2008, PE409.510, Amendment 49. 96 European Parliament, Report of the Committee on Civil Liberties, Justice and Home Affairs of 27 January 2009, A6-0026/2009, Amendment 44 (EMPL). 97 Commission Impact Assessment, SEC(2007) 603, p. 29. 98 Commission Impact Assessment, SEC(2007) 603, p. 30. 99 Voglrieder, Zeitschrift fu ¨ r Ausla¨nderrecht und Ausla¨nderpolitik (2009), p. 168. 100 Council doc. 11000/08 of 3 July 2008, p. 8. 101 Council doc. 14617/08 of 22 October 2008, p. 17. 95

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Art. 15

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II. Inspections Under Article 14(1), Member States are required to carry out effective and adequate 7 inspections. These inspections are to determine whether illegally staying third-country nationals are being employed. It is irrelevant whether inspections are used to check for other offences at the same time. This article does not contain a quantitative target that explicitly prescribes a greater number of inspections. However, in Member States where there have been few inspections to date, the inspections must be increased at least to the extent that ensures they are effective and adequate. The inspections are to be carried out on the basis of a risk assessment drawn up by 8 the competent authorities in the Member States. The risk assessments are to regularly identify the sectors of activity in which there are concentrations of illegal employment. This is supposed to ensure that the inspections are as effective as possible. However, the inspections will be based only ‘primarily’ on a risk assessment. Thus, Member States retain some margin of discretion for taking other considerations into account when deciding which enterprises are to be inspected.102 Under the second subparagraph of Article 14(2), Member States are to inform the 9 Commission before 1 July of each year how many inspections they have conducted. When doing so, they are to report the absolute number of inspections, the percentage of the employers inspected for the individual sectors and the results of the inspections. This expands the reporting requirement already set forth in Article 16(2).103

Article 15 More favourable provisions This Directive shall be without prejudice to the right of Member States to adopt or maintain provisions that are more favourable to third-country nationals to whom it applies in relation with Articles 6 and 13, provided that such provisions are compatible with this Directive. Article 15 states that Articles 6 and 13 ensure only a minimum level of protection for 1 illegal employees. The Member States may retain or introduce provisions that provide for a higher level of protection. This of course requires that such provisions are otherwise also compatible with the Directive. This rule was not contained in the proposal. It was added to the text at the EP’s 2 request in the course of an informal trialogue.104 Since the Directive sets only minimum standards under Article 1, this rule would have possibly also been dispensable. In any case, it states that not only the sanctions and penalties comprise minimum standards but also that the employee protection rules constitute minimum standards as well (see above Article 1 MN 14).

102 Peers/Guild/Tomkin, EU Immigration and Asylum Law (Martinus Nijjoff, 2012), p. 444, points out that choices about which employers to check may not conflict with the principle of non-discrimination. 103 Commission Communication, COM(2014) 286 final, p. 16, includes figures on 2012 inspections reported by Member States. 104 European Parliament, Report of the Committee on Civil Liberties, Justice and Home Affairs of 27 January 2009, A6-0026/2009, Amendment 16 (AGRI).

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Article 16 Reporting 1. By 20 July 2014, and every three years thereafter, the Commission shall submit a report to the European Parliament and the Council including, where appropriate, proposals for amending Articles 6, 7, 8, 13 and 14. The Commission shall in particular examine in its report the implementation by Member States of Article 6(2) and (5). 2. Member States shall send the Commission all the information that is appropriate for drawing up the report referred to in paragraph 1. The information shall include the number and results of inspections carried out pursuant to Article 14(1), measures applied under Article 13 and, as far as possible, measures applied under Articles 6 and 7. Article 16 governs the Commission’s reporting on the implementation of the Directive and contains a so-called rendez-vous clause under which certain provisions are at a later point in time reviewed and, if necessary, re-negotiated. In contrast to the proposal, the obligation to submit reports was expanded and the rendez-vous clause reinserted at the request of the EP.105 2 The Commission had to submit its report to the EP and the Council by 20 July 2014 at the latest (and then every three years thereafter), three years after the transposition period has ended. This article expressly states that the Commission must examine how Article 6(2) and Article 6(5) have been implemented. This pertains, on the one hand, to procedures to ensure that illegal employees may enforce claims for outstanding remuneration and, on the other hand, to the granting of residence permits for the purpose of enforcing such claims. In its report, the Commission may set forth proposals for amending Articles 6, 7, 8, 13 and 14. Apart from the criminal-law provisions, these are the Directive’s most controversial rules. A less ambitious formulation than what the Commission had proposed was ultimately agreed on for these rules. 3 Under Article 16(2) Member States must send the Commission all the information that is appropriate for drawing up its report. Article 16(2) particularly mentions the number and results of the inspections pursuant to Article 14, the number of measures applied under Article 13 and, when possible, the number of measures applied under Articles 6 and 7. 4 In its first report106, the Commission concluded that for the time being it was not necessary to propose amendments to the Directive. However, Member States efforts regarding inspections as well as the implementation of the protective elements in Articles 6 and 13 seem to have left room for improvement. Moreover, the severity of the financial, administrative and criminal sanctions as determined by national law varied considerably between Member States raising questions whether these sanction could always be effective, proportionate or dissuasive. 1

Article 17 Transposition 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 20 July 2011. They shall forthwith inform the Commission thereof. 105 106

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When they are adopted by Member States, those measures shall contain a reference to this Directive or shall be accompanied by such 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 text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 18 Entry into force This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.

Article 19 Addressees This Directive is addressed to the Member States in accordance with the Treaty establishing the European Community. The transposition period will end on 20 July 2011, 24 months after the Directive 1 entered into force. Member States must inform the Commission immediately regarding their transposition of the Directive. When adopting measures to transpose the Directive, the Member States are to include a reference to the Directive. It is left to the Member States to include the reference to the Directive either in the respective measure or in their official publication. Under Article 17(2), Member States are required to communicate to the Commission the text of the main provisions they have adopted in the field covered by the Directive. The proposal originally contained a requirement to communicate a correlation table. This was however omitted in the Directive. Under Article 18, the Directive entered into force on 20 July 2009. It is addressed to 2 the Member States.

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X. 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 Official Journal L 343, 23/12/2011, p. 1–9 Selected Bibliography: Brinkmann, ‘Opinion of Germany on the Single Permit Proposal’, EJML 14 (2012), p. 351; Carrera/Faure Atger/Guild/Kostakopoulou, ‘Labour Immigration Policy in the EU: A Renewed Agenda for Europe 2020’, CEPS Policy Brief 240 (2011), available at: http://www.ceps.eu/book/ labour-immigration-policy-eu-renewed-agenda-europe-2020 [last accessed 26 December 2014]; Eisele, ‘Falling Through the Cracks: Third-Country Nationals and the Recognition of Qualifications in the EU’, in Carrera/Guild/Eisele (eds), Rethinking the Attractiveness of EU Labour Immigration Policies: Comparative perspectives on the EU, the US, Canada and beyond (CEPS, 2014), p. 54; Groenendijk, ‘Which Way Forward with Migration and Employment in the EU’, in Carrera/Guild/Eisele (eds), Rethinking the Attractiveness of EU Labour Immigration Policies: Comparative perspectives on the EU, the US, Canada and beyond (CEPS, 2014), p. 91; Groenendijk, ‘Social Assistance and Social Security for Lawfully Resident Third-Country Nationals: On the Road to Citizenship?, in Guild/Carrera/Eisele, Social Benefits and Migration: A Contested Relationship and Policy Challenge in the EU (CEPS, 2013), p. 22; Iglesias Sa´nchez, ‘Fundamental Rights Protection for Third Country Nationals and Citizens of the Union: Principles for Enhancing Coherence’, EJML 15 (2013), p. 137; Gaastra/de Lange, ‘De implementatie van Richtlijn 2011/ 98/EU: naar een gecombineerde vergunning voor verblijf en arbeid’, PS Documenta 1 (2014), p. 33; Morano-Foadi/de Vries, ‘The equality clauses in the EU Directives on non-discrimination and migration/ asylum’ in Morano-Foadi/Malena (eds), Integration for third country nationals: the equality challenge, (Edward Elgar, 2012), p. 16; Pascouau/McLoughlin, ‘EU Single Permit Directive: a small step forward in EU migration policy’, European Policy Centre Policy Brief (2012), available at: http://www.epc.eu/ documents/uploads/pub_1398_eu_single_permit_directive.pdf [last accessed 26 December 2014]; Peers/ Guild/Acosta/Groenendijk/Moreno Lax, EU Immigration and Asylum Law (Text and Commentary), 2nd Edition, Chapter on Single permits and workers’ rights (Brill, 2012), p. 223; Roos, The EU and Immigration Policies: Cracks in the Walls of Fortress Europe? (Palgrave Macmillan, 2013).

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, Having regard to the opinion of the European Economic and Social Committee(1), Having regard to the opinion of the Committee of the Regions(2), Acting in accordance with the ordinary legislative procedure(3), Whereas: (1) For the gradual establishment of an area of freedom, security and justice, the Treaty on the Functioning of the European Union (TFEU) provides for measures to

(1)

OJ C 27, 3.2.2009, p. 114. OJ C 257, 9.10.2008, p. 20. (3) Position of the European Parliament of 24 March 2011 (not yet published in the Official Journal) and position of the Council at first reading of 24 November 2011 (not yet published in the Official Journal). Position of the European Parliament of 13 December 2011 (not yet published in the Official Journal). (2)

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be adopted in the fields of asylum, immigration and protection of the rights of thirdcountry nationals. (2) The European Council, at its special meeting in Tampere on 15 and 16 October 1999, acknowledged the need for harmonisation of national law governing the conditions for admission and residence of third-country nationals. In this context, it stated in particular that the European Union should ensure fair treatment of thirdcountry nationals who are legally residing in the territory of the Member States and that a more vigorous integration policy should aim to grant them rights and obligations comparable to those of citizens of the Union. The European Council accordingly asked the Council to adopt the legal instruments on the basis of Commission proposals. The need for achieving the objectives defined at Tampere was reaffirmed by the Stockholm Programme, which was adopted by the European Council at its meeting of 10 and 11 December 2009. (3) Provisions for a single application procedure leading to a combined title encompassing both residence and work permits within a single administrative act will contribute to simplifying and harmonising the rules currently applicable in Member States. Such procedural simplification has already been introduced by several Member States and has made for a more efficient procedure both for the migrants and for their employers, and has allowed easier controls of the legality of their residence and employment. (4) In order to allow initial entry into their territory, Member States should be able to issue a single permit or, if they issue single permits only after entry, a visa. Member States should issue such single permits or visas in a timely manner. (5) A set of rules governing the procedure for examination of the application for a single permit should be laid down. That procedure should be effective and manageable, taking account of the normal workload of the Member States’ administrations, as well as transparent and fair, in order to offer appropriate legal certainty to those concerned. (6) The provisions of this Directive should be without prejudice to the competence of the Member States to regulate the admission, including the volumes of admission, of third-country nationals for the purpose of work. (7) Posted third-country nationals should not be covered by this Directive. This should not prevent third-country nationals who are legally residing and working in a Member State and posted to another Member State from continuing 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 of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services(4). (8) Third-country nationals who have acquired long-term resident status in accordance with Council Directive 2003/109/EC of 25 November 2003 on the status of third-country nationals who are long-term residents(5) should not be covered by this Directive given their more privileged status and their specific type of residence permit ‘long-term resident-EU’. (9) Third-country nationals who have been admitted to the territory of a Member State to work on a seasonal basis should not be covered by this Directive given their temporary status. (4) (5)

OJ L 18, 21.1.1997, p. 1. OJ L 16, 23.1.2004, p. 44.

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(10) The obligation on the Member States to determine whether the application is to be made by a third-country national or by his or her employer should be without prejudice to any arrangements requiring both to be involved in the procedure. The Member States should decide whether the application for a single permit is to be made in the Member State of destination or from a third country. In cases where the third-country national is not allowed to make an application from a third country, Member States should ensure that the application may be made by the employer in the Member State of destination. (11) The provisions of this Directive on the single application procedure and on the single permit should not concern uniform or long-stay visas. (12) The designation of the competent authority under this Directive should be without prejudice to the role and responsibilities of other authorities and, where applicable, the social partners, with regard to the examination of, and the decision on, the application. (13) The deadline for adopting a decision on the application should not include the time required for the recognition of professional qualifications or the time required for issuing a visa. This Directive should be without prejudice to national procedures on the recognition of diplomas. (14) The single permit should be drawn up in accordance with Council Regulation (EC) No 1030/2002, of 13 June 2002 laying down a uniform format for residence permits for third-country nationals(6), enabling Member States to enter further information, in particular as to whether or not the person is permitted to work. A Member State should indicate, inter alia, for the purpose of better control of migration, not only on the single permit but also on all the issued residence permits, the information relating to the permission to work, irrespective of the type of the permit or the residence title on the basis of which the third-country national has been admitted to the territory and has been given access to the labour market of that Member State. (15) The provisions of this Directive on residence permits for purposes other than work should apply only to the format of such permits and should be without prejudice to Union or national rules on admission procedures and on procedures for issuing such permits. (16) The provisions of this Directive on the single permit and on the residence permit issued for purposes other than work should not prevent Member States from issuing an additional paper document in order to be able to give more precise information on the employment relationship for which the format of the residence permit leaves insufficient space. Such a document can serve to prevent the exploitation of third-country nationals and combat illegal employment but should be optional for Member States and should not serve as a substitute for a work permit thereby compromising the concept of the single permit. Technical possibilities offered by Article 4 of Regulation (EC) No 1030/2002 and point (a)16 of the Annex thereto can also be used to store such information in an electronic format. (17) The conditions and criteria on the basis of which an application to issue, amend or renew a single permit can be rejected, or on the basis of which the single permit can be withdrawn, should be objective and should be laid down in national law including the obligation to respect the principle of Union preference as expressed in particular in the relevant provisions of the 2003 and 2005 Acts of Accession. Rejection and withdrawal decisions should be duly reasoned. (6)

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(18) Third-country nationals who are in possession of a valid travel document and a single permit issued by a Member State applying the Schengen acquis in full, should be allowed to enter into and move freely within the territory of the Member States applying the Schengen acquis in full, for a period up to three months in any sixmonth period in accordance with Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)(7) and Article 21 of the 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(8) (Schengen Convention). (19) In the absence of horizontal Union legislation, the rights of third-country nationals vary, depending on the Member State in which they work and on their nationality. With a view to developing further a coherent immigration policy and narrowing the rights gap between citizens of the Union and third-country nationals legally working in a Member State and complementing the existing immigration acquis, a set of rights should be laid down in order, in particular, to specify the fields in which equal treatment between a Member State’s own nationals and such third-country nationals who are not yet long-term residents is provided. Such provisions are intended to establish a minimum level playing field within the Union, to recognise that such third-country nationals contribute to the Union economy through their work and tax payments and to serve as a safeguard to reduce unfair competition between a Member State’s own nationals and third-country nationals resulting from the possible exploitation of the latter. A third–country worker in this Directive should be defined, without prejudice to the interpretation of the concept of employment relationship in other provisions of Union law, as a third-country national who has been admitted to the territory of a Member State, who is legally residing and who is allowed, in the context of a paid relationship, to work there in accordance with national law or practice. (20) All third-country nationals who are legally residing and working in Member States should enjoy at least a common set of rights based on equal treatment with the nationals of their respective host Member State, irrespective of the initial purpose of or basis for admission. The right to equal treatment in the fields specified by this Directive should be granted not only to those third-country nationals who have been admitted to a Member State to work but also to those who have been admitted for other purposes and have been given access to the labour market of that Member State in accordance with other provisions of Union or national law, including family members of a third-country worker who are admitted to the Member State in accordance with Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification(9); third-country nationals who are admitted to the territory of a Member State in accordance with 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(10); and researchers admitted in accordance with Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research(11). (7)

OJ L 105, 13.4.2006, p. 1. OJ L 239, 22.9.2000, p. 19. (9) OJ L 251, 3.10.2003, p. 12. (10) OJ L 375, 23.12.2004, p. 12. (11) OJ L 289, 3.11.2005, p. 15. (8)

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(21) The right to equal treatment in specified fields should be strictly linked to the third-country national’s legal residence and the access given to the labour market in a Member State, which are enshrined in the single permit encompassing the authorisation to reside and work and in residence permits issued for other purposes containing information on the permission to work. (22) Working conditions as referred to in this Directive should cover at least pay and dismissal, health and safety at the workplace, working time and leave taking into account collective agreements in force. (23) A Member State should recognise professional qualifications acquired by a third-country national in another Member State in the same way as those of citizens of the Union and should take into account qualifications acquired in a third country in accordance with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications(12). The right to equal treatment accorded to third-country workers as regards recognition of diplomas, certificates and other professional qualifications in accordance with the relevant national procedures should be without prejudice to the competence of Member States to admit such third-country workers to their labour market. (24) Third-country workers should enjoy equal treatment as regards social security. Branches of social security are defined in Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems(13). The provisions on equal treatment concerning social security in this Directive should also apply to workers admitted to a Member State directly from a third country. Nevertheless, this Directive should not confer on thirdcountry workers 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. This Directive, furthermore, 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. This Directive should grant rights only 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. (25) Member States should ensure at least equal treatment of third-country nationals who are in employment or who, after a minimum period of employment, are registered as unemployed. Any restrictions to the equal treatment in the field of social security under this Directive should be without prejudice to the rights conferred pursuant to Regulation (EU) No 1231/2010 of the European Parliament and of the Council of 24 November 2010 extending Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to nationals of third countries who are not already covered by these Regulations solely on the ground of their nationality(14). (26) Union law does not limit the power of the Member States to organise their social security schemes. In the absence of harmonisation at Union level, it is for each Member State to lay down the conditions under which social security benefits are granted, as well as the amount of such benefits and the period for which they are granted. However, when exercising that power, Member States should comply with Union law. (27) Equal treatment of third-country workers should not apply to measures in the field of vocational training which are financed under social assistance schemes.

(12)

OJ L 255, 30.9.2005, p. 22. OJ L 166, 30.4.2004, p. 1. (14) OJ L 344, 29.12.2010, p. 1. (13)

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(28) This Directive should be applied without prejudice to more favourable provisions contained in Union law and applicable international instruments. (29) Member States should give effect to the provisions of this Directive without discrimination on the basis of sex, race, colour, ethnic or social origin, genetic characteristics, language, religion or beliefs, political or other opinions, membership of a national minority, fortune, birth, disabilities, age or sexual orientation in particular in accordance with Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin(15) and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation(16). (30) Since the objectives of this Directive, namely laying down a single application procedure for issuing a single permit for third-country nationals to work in the territory of a Member State and a common set of rights for third-country workers legally residing in a Member State, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives. (31) This Directive respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union in accordance with Article 6(1) of the TEU. (32) In accordance with the Joint Political Declaration of Member States and the Commission on explanatory documents of 28 September 2011, Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified. (33) In accordance with Articles 1 and 2 of the Protocol (No 21) on the position of the United Kingdom and Ireland, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Directive and are not bound by it or subject to its application. (34) In accordance with Articles 1 and 2 of the Protocol (No 22) on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application, HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I GENERAL PROVISIONS Article 1 Subject matter 1. This Directive lays down: (a) a single application procedure for issuing a single permit for third-country nationals to reside for the purpose of work in the territory of a Member State, (15) (16)

OJ L 180, 19.7.2000, p. 22. OJ L 303, 2.12.2000, p. 16.

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in order to simplify the procedures for their admission and to facilitate the control of their status; and (b) a common set of rights to third-country workers legally residing in a Member State, irrespective of the purposes for which they were initially admitted to the territory of that Member State, based on equal treatment with nationals of that Member State. 2. This Directive is without prejudice to the Member States’ powers concerning the admission of third-country nationals to their labour markets. Content I. II. III. IV. V.

General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Drafting History of the Directive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Drafting history of Article 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The twofold objective of the Directive (Article 1(1)) . . . . . . . . . . . . . . . . . . . . . . . Member States retained powers concerning admission (Article 1(2)) . . .

1 4 10 12 17

I. General remarks 1

The adoption of EU instruments in the field of economic migration has been a long process and has undergone serious difficulties. After the introduction of a specific legal basis for the adoption of measures in the field of legal migration with the Treaty of Amsterdam,1 the first attempts of the Commission to regulate economic migration date back to the year 2001, when a proposal for a Directive on the conditions of admission and stay for third country workers was adopted.2 This proposal intended to regulate residence and entry conditions for all third-country workers, covering employed and self-employed activities. This ambitious and comprehensive proposal could not gather the necessary consensus among the Member States and was subsequently withdrawn. This situation lead to a process of reconsideration and discussion of the EU approach to economic migration through the Green Paper launched by the European Commission.3 In the course of the discussions, whereas some institutional stakeholders were still of the opinion that a comprehensive approach to economic migration would be more appropriate,4 some others recommended to proceed ‘through an approach focused on the regulation of the conditions of admission for some specific categories, (…) recognizing, at the same time, the need to secure the legal position of all migrant workers and to simplify bureaucratic procedures’.5 As a result of this consultation, the Commission presented a new sectorial approach to economic migration in her Policy Plan on Legal Migration,6 announcing four different proposals, three of them, on specific groups of workers (highly qualified migrants, seasonal workers and intracorporate transferees), and a general directive on the rights of all migrant workers. As 1 For the ‘soft-law’ approach before the Treaty of Amsterdam, see Council Resolution of 20 June 1994 on limitation on admission of third-country nationals to the territory of the Member States for employment OJ 1996 C 274/3; Council Resolution of 30 November 1994 relating to the limitations on the admission of third-country nationals to the territory of the Member States for the purpose of pursuing activities as self-employed persons, OJ 1996 C 274/7. 2 Commission Communication, COM(2001) 386. 3 Commission Communication, COM(2004) 811 final. 4 Resolution of the European Parliament on an EU approach to managing economic migration A60286/2005 point 26; Opinion of the European Economic and Social Committee on the Green Paper on an EU approach to managing economic migration, SOC/199, point 2.1.4. 5 Commission Staff working document annex to the: Communication from the Commission Policy Plan on legal Migration: Impact Assessment, SEC(2005) 1680. 6 Commission Communication, COM(2005) 669 final.

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a result, three sectorial directives have been approved.7 Directive 2001/98/UE constitutes the horizontal instrument conceived to respond to the needs to grant a minimum level of protection to all third-country workers that have already been admitted to the EU Member States, and to simplify the bureaucratic procedures for those applying to reside for the purpose of work. Against this background, the Single Permit Directive constitutes a crucial element of 2 the common migration policy and fulfils one of the objectives already declared in the Tampere European Council of October 1999, namely, to guarantee a fair treatment for third-country nationals legally residing in the Member States. This horizontal instrument is destined to be the reference in order to establish the minimum legal protection of third-country workers in the Member States, even with regard to those who have been admitted according to national laws and procedures. However, it should be borne in mind that this Directive provides only for a minimum level of harmonization: it does not contain any regulation with regard to admission conditions, it does not interfere with national procedures to handle applications – beyond the uniform procedural rules –, and it does not preclude more favourable national provisions with regard to the rights of third country workers. Be it as it may, the Single Permit Directive constitutes a central piece in the construction of a common migration policy and plays a key role in understanding and systematically interpreting other sectorial directives in the field of economic migration. The overall objective of a ‘fair treatment’ towards third-country nationals has been 3 constitutionalized by the Treaty of Lisbon. Indeed, both Article 67(2) and Article 79(1) TFUE refer to a common migration policy which is fair towards third-country nationals (legally residing) in the Member States. For these purposes, the Union has been granted competence to adopt, through the ordinary legislative procedure, measures concerning the conditions of entry and residence (Article 79(2)(a)) as well as the definition of the rights of third-country nationals legally residing in the Member States (Article 79(2)(b)). These provisions constitute the legal basis of the Single Permit Directive.

II. Drafting History of the Directive The Single Permit Directive was adopted the 13 December 2011, on the basis of 4 Article 79(2)(a) and (b) TFUE.8 It is the first legal migration instrument adopted through the ordinary legislative procedure after the entry into force of the Lisbon Treaty. The proposal for the Directive was adopted by the Commission in 2007,9 together with the proposal for the Blue Card Directive. Nonetheless, whereas the Blue Card Directive was adopted in 2009, the adoption of the Single Permit Directive suffered more delays because of different disagreements during the negotiation process in the Council and in the European Parliament. The negotiation of the Directive was initially governed by the consultation procedure 5 and unanimity voting in the Council, according to Article 63 TCE. In this first stage, the European Parliament adopted a first legislative resolution,10 the European Economic and 7 Blue Card Directive 2009/50/EC; Seasonal Workers Directive 2014/36/EU and the ICT Directive 2014/66/EU. 8 OJ 2011 L 343/1. 9 Commission Communication, COM(2007) 638 final. 10 European Parliament legislative resolution of 20 November 2008 on the proposal for a Council directive 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 2010 C 16/240).

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Social Committee11 and the Committee of the Regions12 also expressed their opinions in 2009 and 2008 respectively. However, negotiations slowed down in 2009 due to disagreements in the Council. The scope of application was a debated question,13 as well as other issues such as the scope of the equal treatment principle (particularly in the field of social security) and the application of the principle of ‘community preference’ – at a time when transitional periods were still applicable to the citizens of new EU Member States-14. Other problematic issue was the legal basis, since the Council Legal Service expressed the opinion that recourse to Article 63(3) TCE was not sufficient.15 6 The entry into force of the Treaty of Lisbon unblocked the negotiation procedure, offering a new legal basis, which entailed the application of a different procedure – the ordinary legislative procedure- with qualified majority voting in the Council and an enhanced role for the European Parliament as a co-legislator. The negotiations carried on taking into account the evolution of previous negotiations in the Council. However, the parliamentary procedure encountered new difficulties due to the different views of the two competent committees – the Civil Liberties, Justice and Home Affairs committee (LIBE) and the Employment and Social Affairs committee (EMPL). This discussion embodied the tensions between the ‘migration’ approach and the ‘social’ approach.16 7 The adoption of the Directive was further delayed due to the negative vote of the Parliament in the plenary session of December 2010.17 The Parliament adopted several amendments in the first reading but it voted not to adopt the amended proposal and did not vote on the legislative resolution. This led to reopen negotiations, and to subsequent differences of opinion between the two committees involved.18 After the Parliament adopted its position on the 24 March 2011, a last hurdle for the adoption of the Directive was the general resistance of the Member States towards the obligation (also contained in this proposal) to elaborate tables of correspondence with the national provisions transposing the provisions of the Directive. This issue could only be resolved through a Joint Political Declaration through which Member States undertook to accompany the notification of transposition measures with explanatory documents, such as correlation tables, only in justified cases.19 According 11

OJ 2009 C 27/114. OJ 2008 C 257/20. 13 On these disagreements see Ross, The EU and Immigration Policies, p. 164. 14 A Declaration from the Council was inserted in the Council minutes in this regard, whereby ‘[t]he Council recalls that policies for labour migration, including this Directive, should be implemented in full respect of the acquis communautaire and the Union preference, as expressed in particular in the relevant provisions of the Acts of Accession of 16 April 2003 and 25 April 2005 that the Member States are bound to respect. Migrant workers from the Member States, to which transitional measures in free movement of workers apply, and members of their families legally resident and working in another Member State, shall therefore not be treated in a more restrictive way than those from third countries resident and working in that Member State and enjoying the rights under this Directive’. Council doc. 6492/10 of 23 February 2010. 15 The Council Legal Service insisted that measures adopted under Article 63(3)(a) TEC covered only those who enjoy a right of residence by virtue of EU law. The Commission differed from this view. See Council doc. 15500/01/08 Rev of 12 November 2008. Several Member States questioned the use of this legal basis for the extension of the application of the equal treatment principle for third-country nationals. Council doc. 5521/09 of 22 January 2009. 16 Pascouau/McLoughlin, European Policy Centre Policy Brief (2012). 17 According to the transcription of the parliamentary debates, there was an unpredicted change of vote within the Group of the Alliance of Liberals and Democrats for Europe, which voted against the proposal. Single application procedure for residence and work, A7-0265/2010, Ve´ronique Mathieu) (vote) – PV 13/12/2010-18. 18 For a detailed account of the parliamentary procedure, see Pascoau/McLoughlin, European Policy Centre Policy Brief (2012). 19 Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents, OJ 2011 C 369/14. See also the Joint Political Declaration of 27 October 2011 of the European Parliament, the Council and the Commission on explanatory documents, OJ 2011 C 369/15. 12

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to this declaration, recital 32 was incorporated into the Directive.20 This is the first directive that contains such obligation.21 The Council adopted its position the 24 November 2011, at first reading. According 8 to the ordinary legislative procedure, the qualified majority rule was applicable for the voting procedure in the Council. All the participating Member States voted in the positive on the 24 November 2011.22 Three Member States did not participate in the adoption of the Directive and are not bound by it: the United Kingdom and Ireland, in accordance with Articles 1 and 2 of the Protocol on the Position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice; and Denmark, in accordance with Articles 1 and 2 of the Protocol on the Position of Denmark. According to Article 294(6) TFUE, the Commission adopted a Communication on the 9 21 November 2011 giving support to the Council’s Position, stating that it satisfied the original objectives and that it was broadly in line with her proposal.23 The Parliament approved the position of the Council at first reading without further amendments on the plenary session of 13 December 2011.

III. Drafting history of Article 1 Article 1 establishes the objectives of the Directive. Two important changes were 10 introduced in the text of Article 1 with regard to the wording proposed by the Commission. In the first place, since the beginning of the negotiations in the Council, Germany, supported by Poland, considered it necessary to clarify expressly in this provision, through the addition of a new sub-paragraph, that the directive would not affect the competence of Member States with regard to the access of third-country nationals to the labour markets of the Member States.24 The first legislative resolution of the European Parliament under the consultation procedure also contained an amendment in this sense.25 The Presidency of the Council proposed to insert this clarification in a new recital.26 In the final text of the Directive, recital 6 serves this purpose, stating that the provisions of the Directive are without prejudice to the Member States’ competence to regulate admission – including admission volumes- of third country nationals for the purposes of work.27 Moreover, the second paragraph to Article 1 was introduced for this purpose,28 according to the wording proposed by the European Parliament.29 Other changes that were proposed were finally not taken over in the final text of the 11 Directive. For example, in order to overcome some reluctances in the Council, it was proposed to limit the scope of the ‘common set of rights’ of the Directive as laid down in Article 1(1)(b) to ‘single permit holders’.30 In the early stages of the adoption process, 20

Council doc. 16276/11 of 11 November 2011. The Commission has reminded Member States of their political commitment. Commission, Contact Committee ‘Migration’ Report Mig-Dir-44, 1.10.2013. 22 Council doc. 17663/11 of 25 November 2011. 23 Communication from the Commission to the European Parliament pursuant to Article 294(6) of the Treaty on the Functioning of the European Union, COM(2011) 832 final. 24 Council doc. 6212/08 of 5 March 2008. 25 P6_TA(2008)0558, OJ 2010 C 16/240. 26 Council doc. 12054 of 22 July 2008. 27 This recital first appears in Council doc. 16673/08 of 19 December 2008, following the meeting of the Justice and Home Affairs Counsellors on 10 December 2008. 28 Following the meeting of the Permanent Representatives Committee on 19 November 2008, Council doc. 16065/08 of 21 November 2008. 29 P6_TA(2008)0558, OJ 2010 C 16/240. 30 See suggestions by the Presidency, Council doc. 10127/09 of 20 May 2009. 21

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still under the consultation procedure, the European Parliament introduced an amendment that went precisely in the opposite direction: indeed, the LIBE Committee insisted on clarifying that the ‘common set of rights’ would be applicable ‘irrespective of the purposes for which they were initially admitted to the territory of that Member State, based on equal treatment with nationals of that Member State’31. This discussion is relevant in order to frame and understand the importance of the approach that was adopted in the definitive text of this Article, which states the objective and therefore influences the whole interpretation of the Directive.

IV. The twofold objective of the Directive (Article 1(1)) 12

13

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The objective of the Directive is laid down by Article 1(1). This objective is twofold as the proposal of the Commission made clear: on the one hand, the directive aims at ‘securing the legal status of already admitted third-country nationals’, on the other hand, it aims at ‘introducing procedural simplifications for the applicants’.32 In the first place, the Directive lays down a single application procedure for all those third country nationals who apply to reside in the territories of the Member States for the purpose of work. This procedure is aimed at simplifying the admission procedures and also to facilitate the control of the administrative situation of third country nationals. As confirmed in Article 1(2), this common application procedure is without prejudice of the competences of the Member States to regulate admission. This procedural simplification has two pillars: the obligation for the Member States to provide for a ‘one-stop-shop’ system, governed by specific procedural safeguards, and a general prohibition for Member States to issue additional permits, such as work permits. These two elements are further developed in Chapter II of the Directive, devoted to the ‘single application procedure and single permit’. In the second place, the directive establishes a common set of rights for third-country workers who reside legally in the Member States. This common set of rights is applicable irrespective of the purposes for which the third country worker was initially admitted: the material provisions of the Directive are to be applied to all third country workers that have been admitted to the Member States no matter for what purpose, and who are allowed to work, with the exceptions of Article 3. This common set of rights, which is based on the principle of equal treatment with nationals of the Member State of residence, is contained in Chapter III of the Directive, composed of a single article: Article 12, devoted to the ‘right to equal treatment’. The fact that the ‘common set of rights’ is applicable notwithstanding the purposes of initial admission, and the reference to the equal treatment principle, added by a parliamentary amendment, constitute two very relevant elements of the Directive, with regard to which Article 12, on the application of the equal treatment principle, has to be interpreted. Concerning the second objective, the Proposal of the Commission stated that there was a ‘rights gap’ with regard to third-country workers and that granting comparable employment-related rights to them would not only recognize their contribution to the European economy, but that it would also help reduce unfair competition.33 Therefore, the spirit of this directive is not only to protect third-country nationals from exploitation, but also to safeguard EU citizens from the lowering of standards and cheap labour. In this context, the Directive aims at creating a level playing field for all third-country workers. 31

P6_TA(2008)0558, OJ 2010 C 16/240. Commission Communication, COM(2007) 638, p. 2. 33 These gaps had been identified by the Commission impact assessment, SEC(2007) 1408. 32

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V. Member States retained powers concerning admission (Article 1(2)) Article 1(2) of the Directive establishes that this instrument is without prejudice to 17 the Member States’ powers concerning admission of third-country nationals to their labour markets. That is to say, the provisions of Chapter II of the Directive, devoted to the ‘single application procedure and single permit’ are of a purely procedural nature and do not have as a purpose to regulate the material conditions for admission and for access to the labour market. Article 1(2) therefore makes clear that Member States have retained powers concerning admission for the purposes of exercising economic activities outside the fields where EU Directives have already been adopted. Moreover, this directive is based on the premise that Member States retain control of their labour markets and that there is no general harmonization of admission for third-country nationals for economic purposes. This provision has to be read in conjunction with Article 79(5) TFEU, which 18 preserves the right of Member States to determine the volumes of admission of thirdcountry nationals coming from third countries to their territory in order to seek work.

Article 2 Definitions For the purposes of this Directive, the following definitions apply: (a) ‘third-country national’ means a person who is not a citizen of the Union within the meaning of Article 20(1) TFEU; (b) ‘third-country worker’ means a third-country national who has been admitted to the territory of a Member State and who is legally residing and is allowed to work in the context of a paid relationship in that Member State in accordance with national law or practice; (c) ‘single permit’ means a residence permit issued by the authorities of a Member State allowing a third-country national to reside legally in its territory for the purpose of work; (d) ‘single application procedure’ means any procedure leading, on the basis of a single application made by a third-country 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 I. II. III. IV. V.

General remarks and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Third-country national. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Third-country workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Single permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Single application procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

I. General remarks and drafting history This article contains some basic definitions of the terms that are widely used 1 throughout the Directive. Some of them are common to other instruments, like the notion of ‘third-country nationals’, and did not pose any problems during the negotiating procedure. Iglesias Sa´nchez

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The notions of ‘single permit’ and ‘single application procedure’ were debated and 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.34 In the course of the negotiations, two important 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’.35

II. Third-country national 3

In the same way as other legal migration directives,36 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) TFUE, which in its turn 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) TFUE, according to which, for the purposes of Title V TFUE, devoted to the Area of freedom, security and justice, ‘stateless persons shall be treated as third-country nationals’.

III. Third-country workers 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.37 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. 5 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 1(1), which states that the 4

34

Council doc. 6212/08 of 5 March 2008. Brinkmann, EJML 2014, p. 351, 357. 36 e. g. Article 2 of the Blue Card Directive 2009/50/EC; the Long Term Residents’ Directive 2003/109/ EC; Family Reunification Directive 2003/86/EC; Researchers’ Directive 2005/71/EC; Student Directive 2004/114/EC. See also Article 3 of the Seasonal Workers Directive 2014/36/EU and of the ICT Directive 2014/66/EU. 37 Council doc. 8145/09 of 30 March 2009. 35

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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 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 his 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. 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.38 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 relationship’ was added at the request of those Member States who wished to clarify that the Directive is not applicable to self-employed workers.39 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.40 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.41 Indeed, even 38 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. 39 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, EJML 2014, p. 351, 357. 40 Council doc. 144668/08 of 29 October 2008. 41 The ECJ has interpreted the notion of worker in numerous occasions. See e. g. ECJ, Lawrie-Blum, 66/ 85, EU:C:1986:284, para 17, where the ECJ establish that ‘the essential feature of an employment relationship (…) is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration’. As long as an effective and

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though the concept of ‘worker’ has an autonomous meaning under EU law, it is not always possible to uniformly interpret concepts in different contexts of EU legislation.42 Differently from other EU migration directives, such as the Blue Card Directive,43 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 1030/2002.44 In this regard, a new recital was included, following the suggestions of the Presidency during the negotiations in the Council,45 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.46

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 consequence in regard to whether or not a person is to be regarded as a worker’, ECJ, Bettray, 344/87, EU:C:1989:226, para 15. 42 e. g. with regard to the notion of ‘social security’, see AG Wahl, ECJ, Brey, C-140/12, EU:C:2013:337, paras 34 and 40. 43 Blue Card Directive 2009/50/EC, Article 2(b). 44 Council doc. 144668/08 of 29 October 2008. 45 Council docs. 15500/08 of 11 November 2008 and 16065/08 of 21 November 2008. 46 P6_TA(2008)0558, OJ C 16, 21.1.2010, p. 240.

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Article 3 Scope 1. 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 States(17); (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; (f) 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, international 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 has not been the subject of a final decision; (i) who are long-term residents in accordance with Directive 2003/109/EC; (j) 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;

(17) (18)

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

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(l) 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 exceeding 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 are 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)) . . . . . . . . . . . . . . . . . 1. Family members of Union citizens who have exercised free movement (Article 3(2)(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)(f)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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)(l)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Exclusions from Chapter II of the Directive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Possibility to exclude those authorised to work for not more than six months (Article 3(3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Exclusion of visa holders (Article 3(4)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

I. General remarks and drafting history Article 3, which determines 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 permit issued on the basis of the single application procedure.47 2 The text of Article 3 has undergone 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 level playing field and common rights to all third country nationals legally residing in the Member 1

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States, the exclusion of no less than 12 categories is one of the most criticized elements 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 level of uniformity in the approach of the Union to legal migration.48 The Directive does not therefore overcome the situation of fragmentation of EU migration law.49 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.

II. Scope of the Directive (Article 3(1)) According to Article 3(1), which defines the scope of the Directive, this instrument is 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 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.50 Moreover, the reference to ‘third-country workers legally residing in a Member State’ 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) TCE as the appropriate legal basis to include under the Directive third country nationals who had not been admitted under EU provisions.51 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.52 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 48 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 LIBE Report of 22 October 2010 A7-0265/2010. 49 Morano-Foadi/de Vries, in Morano-Foadi/Malena (eds), Integration for third country nationals, p. 37. 50 Council doc. 6212/08 of 5 March 2008. 51 See e. g. Council doc 7721/09 of 18 March 2009. 52 Council doc. 6273/10 of 10 February 2010.

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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,53 in order to reflect appropriately in the scope of the Directive the provisions of its Article 7.54 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. 8 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. 9 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 pre´paratoires.55 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.56 10 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 present in the territory of a Member State may also apply for a single permit if national law allows them to submit the application in the their territory.57 The Presidency suggested the inclusion of a recital explaining this possibility,58 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. Nonetheless, this group should be also understood as excluded from the scope of the Directive since, as the Commission made clear during the negotiations in the Council, this instrument applies to third country nationals who work and reside in the same Member State (or who apply to do so).59

III. Exclusions from the scope of the Directive (Article 3(2)) 11

The exclusions from the scope of the Directive are exhaustively enumerated in 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 which also 53

Council doc. 15500/08 of 11 November 2008. Council doc. 15113/08 of 6 November 2008. 55 On this discussion: Council doc. 7710/09 of 18 March 2009. 56 Council doc. 6212/08 of 5 March 2008. 57 Council doc. 6212/08 of 5 March 2008. 58 Council doc. 12054/08 of 22 July 2008. 59 Council doc. 10807/08 of 2 July 2008. 54

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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.

1. Family members of Union citizens who have exercised free movement (Article 3(2)(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,60 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.61 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 State after having exercised free movement rights.62 Indeed, this situation is not governed by 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 establish 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 national’.63 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 Directive 2004/38/EC.64

2. Persons who enjoy equivalent free movement rights to Union citizens (Article 3(2)(b)) The exclusion of those who enjoy free movement rights equivalent to Union citizens 13 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.65 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.66 60 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. 61 The Blue Card Directive contains a similar provision. See commentary to Article 3(2)(c) to the Blue Card Directive in this volume. 62 ECJ, Singh, C-370/90, EU:C:1992:296; ECJ, Eind, C-291/05, EU:C:2007:771. 63 ECJ, O., 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 exclusion provided for in Article 3(2)(a) of the Single Permit Directive, would run counter its effet utile. 64 ECJ, Ruiz Zambrano, C-34/09, EU:C:2011:124. See, in this regard, Peers/Guild/Acosta/Groenendijk/ Moreno Lax, EU Immigration and Asylum Law, p. 224, footnote 9. 65 Council doc. 12342/08 of 2 October 2008. 66 Agreement on the European Economic Area between the European Communities, their Member States and the Republic of Austria, the Republic of Finland, the Republic of Iceland, the Principality of

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3. Posted workers (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’. Some Member States expressed certain reluctance towards this exclusion,67 but the discussions in the Council and in the Parliament mostly concentrated in the clarification of the posted workers covered by this provision. Nonetheless, the reference to Directive 96/71/EC has been suppressed from the final text.68 In this regard, at the request of the EMPL committee,69 recital 7 was included, in order to clarify that the Directive should not prevent these workers from continuing to enjoy equal treatment for the duration of their posting with the nationals of the Member State of origin, in respect of those terms and conditions of employment not affected by the application of Directive 96/71/EC. This clarification would not have been necessary, since the Posted workers’ Directive constitutes lex specialis.

4. Intra-corporate transferees (Article 3(2)(d)) 15

The exclusion of those who have applied for admission or have been admitted as 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 ICT 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 provides for a definition of ‘intracorporate transfer’ in its Article 3(b), according to which this concept covers ‘the temporary secondment for occupational or training purposes of a third-country 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 was adopted after the Single Permit Directive, this exception also affects intra-corporate transferees admitted under national regimes applicable before the ICT Directive.

5. Seasonal workers and au-pairs (Article 3(2)(e)) 16

The exclusion of seasonal workers from the scope of the Directive also bears relation with the existence of a specific instrument on their status: the Seasonal Workers

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 Swiss Confederation, of the other, on the free movement of persons, OJ 2002 L 114/1. 67 Council doc. 6212/08 of 5 March 2008. 68 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 services. 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 November 2008. 69 Opinion of the Committee on Employment and Social Affairs of 30 April 2010, included in the LIBE Report of 22 October 2010 A7-0265/2010.

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Directive 2014/36/EU. The concept of ‘seasonal worker’ is defined in Article 3(b) of that Directive. On the contrary, the concept of ‘au-pair’ is not yet defined in EU law.70 The Commission’s proposal already took into account the perspectives of adopting a 17 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 categories of third-country nationals residing on a temporary basis should also be excluded from the scope of the Directive,71 in line with the Long-term residents’ Directive 2003/109/CE.72 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 negotiations, only the inclusions of aupairs made its way into the final wording of this provision.73

6. Beneficiaries of or applicants for temporary protection (Article 3(2)(f)) The initial Commission’s proposal already foresaw the exclusion of those ‘staying in a 18 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,74 inasmuch as they are authorised to work according to article 12 of the Temporary Protection Directive 2001/ 55/CE. 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,75 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.76

7. Beneficiaries of international protection under Directive 2004/83/EC (Article 3(2)(g)) This provision was introduced during the negotiation procedure through amend- 19 ments by the European Parliament and the Council.77 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.78 70 A Proposal including the conditions of entry and residence of au-pairs is currently being negotiated. Proposal for a Directive of the European Parliament and the Council on the conditions of entry and residence of third-country nationals for the purposes of research, studies, pupil exchange, remunerated and unremunerated training, voluntary service and au pairing [RECAST] COM (2013) 151. 71 Council doc. 6212/08 of 5 March 2008. 72 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’. 73 Council doc. 14668/08 of 29 October 2008. 74 See amendment 17, PE409.37v03-00. 75 As reflected e. g. in Council doc. 10708/10 of 8 June 2010. 76 Article 3(a). 77 See e. g. Council doc. 10708/10 of 8 June 2010. 78 Council doc. 14668/08 of 29 October 2008.

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In this regard, the Commission stated that the rights of beneficiaries of international protection are expressly provided for in the relevant EU instruments.79 The final text of this provision reproduces the exclusion already provided for in the Blue Card Directive 2009/50/EC.80 20 Since the former Asylum Qualification Directive 2004/83/EC has been repealed by 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)) 21

Article 3(2)(h) completes the list of exclusion of beneficiaries of the different kinds of 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.81

9. Long-term residents (Article 3(2)(i)) 22

This exclusion was already contemplated in the Commission’s proposal. According to recital 8, long-term residents should not be covered since they already enjoy a more privileged status according to the Long Term Residents’ Directive 2003/109/EC, and since they are also holders of a specific residence permit, the ‘long-term resident-EU’.

10. Persons whose removal has been suspended (Article 3(2)(j)) The Commission’s proposal contained a similar exclusion, taking over the wording of 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 Directive 2008/115/EC and in accordance to national law. 24 According to the Return Directive, ‘removal’ means the enforcement of the obligation to return, namely the physical transportation out of the Member State.82 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 Directive. On the other hand, Article 9 of the Return Directive 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. 23

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11. Self-employed workers (Article 3(2)(k)) The exclusion of self-employed workers was not initially foreseen by the Commis- 25 sion’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’.83 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.84

12. Seafarers (Article 3(2)(l)) This exclusion, which was not contemplated by the Commission’s Proposal, was 26 added as the result of the discussions during the meeting of JHA Counsellors on March 2009,85 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 Chapter II of the Directive is destined to establish the rules governing the single 27 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 III of the Directive. Therefore, two specific exclusions that concern solely the provisions of Chapter II of the Directive were introduced.

1. Possibility to exclude those authorised to work for not more than six months (Article 3(3)) The issue of the categories of third-country nationals to be excluded on the basis of 28 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.86 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 of their stay from the equal treatment principle.87 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,88 this proposal was not finally retained in 83

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6212/08 of 5 March 2008. 144668/08 of 29 October 2008. 7721/09 of 18 March 2009. 14668/08 of 29 October 2008. 15113/08 of 6 November 2008. 16673/08 of 19 December 2009.

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the text of the Directive.89 Therefore, third-country nationals admitted as students may apply for the single permit under the single permit procedure.

2. Exclusion of visa holders (Article 3(4)) 29

During the negotiations, it was considered that the holders of a visa should be excluded from Chapter II having in mind the definition of single permit and the reference to Regulation 1030/2002.90 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 2008.91 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 1. 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 1 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 nationals already admitted who apply to renew or modify their residence permit after the entry into force of the national implementing provisions. Content I. II. III. IV. V.

General remarks and drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Submission of applications (Article 4(1)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Decision and obligation to issue a single permit (Article 4(2) and (4)) . Application of national visa regimes (Article 4(3)) . . . . . . . . . . . . . . . . . . . . . . . . . Derogation clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 5 7 8

89 It was eliminated as part of a compromise solution proposed by the Presidency. Council doc. 8145/ 09 of 30 March 2009. 90 Council doc. 15764/08 of 17 November 2008. 91 Council doc. 16673/08 of 19 December 2009.

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I. General remarks and drafting history As the Commission highlighted in her proposal, this is the central provision that 1 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. The proposal of the Commission only referred to national law in paragraph 2, with 2 regard to the person who should submit the application. During the negotiations in the Council, other different possibilities were expressly introduced, with the Parliament also advocating for an amendment in this sense.92 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.93 The Commission did not oppose this insertion, in line with the Blue Card Directive.

II. Submission of applications (Article 4(1)) Member States are able to determine who should submit the applications for a single 3 permit: the employer, the third-country 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).94 At the instances of the European Parliament,95 it is provided that, if Member States 4 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-country. 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 to facilitate movement of third-country nationals among Member States, following the trend of other EU migration directives.96

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 5 adopt a decision on the issue, amendment or renewal of the single permit. 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.97 With 92

Council doc. 10708/10 of 8 June 2010. Council doc. 10807/08 of 2 July 2008. 94 See also Commission, Contact Committee ‘Migration’ Report Mig-Dir-44, 1.10.2013. 95 Council doc. 15657/10 of 12 November 2010. 96 As the Long Term Resident’s Directive 2003/109/EC, the Student Directive 2004/114/EC, the Researchers’ Directive 2005/71/EC and the Blue Card Directive 2009/50/EC. 97 For the interpretation of the ECJ with regard of Schengen visas and students permits, respectively, see ECJ, Koushkaki, C-84/12, EU:C:2013:862 and ECJ, Ben Alaya, C-491/13, EU:C:2014:2187. 93

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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. 6 It has to be noted that, whereas the obligation of respecting the principle of Union 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)) 7

The visa regimes of the Member States which may be applicable to different 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.98 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 8

In accordance to Article 3(4), this provision does not apply to those allowed to work on the basis of a visa. According to Article 3(3) of the Directive, Member States are allowed 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.

Article 5 Competent authority 1. Member States shall designate the authority competent to receive the application and to 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 first 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. 98

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Part C X

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 to 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 I. II. III. IV. V.

Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The competent authority (Article 5(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Deadline for examining applications (Article 5(2)). . . . . . . . . . . . . . . . . . . . . . . . . . Procedural guarantees (Article 5(3) and (4)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Derogation clauses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3 5 7

I. Drafting history Article 5 did not suffer many modifications during the negotiations. The most 1 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 1, in order to clarify that the consequences of administrative silence are determined by national law.99

II. The competent authority (Article 5(1)) The wording of article 5 of the Directive insists on the fact that Member States have 2 to designate a competent authority (in the singular). This fact has to be understood 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 pre´paratoires100 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.

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.101 The exceptional circumstances that may be 99

Council doc. 1565/10 of 12 November 2010. 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. 101 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. 100

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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 neither include the time required for the recognition of professional qualifications nor the time required for issuing a visa. 4 The fact that Member States are to determine the consequences of administrative 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.102

IV. Procedural guarantees (Article 5(3) and (4)) During the negotiations of this article, additional guarantees have been added in 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 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,103 that if the additional information or documents are not provided within the deadline, the application could be rejected.104 5

V. Derogation clauses 7

See above Article 4 MN 8.

Article 6 Single permit 1. 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 accordance with point (a) 7.5–9 of the Annex 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, 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 in point (a)16 of the Annex thereto. 102 Article 41 of the Charter of fundamental rights is 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 e.a., C141/12, EU:C:2014:2081 and ECJ, Mukarubega, C-166/13, EU:C:2014:2336). 103 Council doc. 10807/08 of 2 July 2008. 104 Council doc. 10807/08 of 2 July 2008.

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Art. 6

Single Permit Directive 2011/98/EC

Part C X

2. When issuing the single permit Member States shall not issue additional permits as proof of authorisation to access the labour market. Content I. Uniform format. Additional documents and information (Article 6(1)) . II. Prohibition of additional permits (Article 6(2)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Derogation clauses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 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. In light of the general prohibition to issue additional permits, the possibility to 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.105 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.106 As a result of these debates, a second paragraph was included in Article 6(1) which 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 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 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. 105

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, EJML 2014, p. 351, 358–359. 106

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II. Prohibition of additional permits (Article 6(2)) 5

According to Article 5(2), Member States are not allowed to issue any kind of additional permit with the aim to serve as a proof of authorisation to access to the labour market.

III. Derogation clauses 6

See above Article 4 MN 8.

Article 7 Residence permits issued for purposes other than work 1. 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 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)16 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 I. Obligation to include information about authorisation to work (Article 7(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Additional information and prohibition of additional permits (Article 7(1) and (2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Derogation clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 4

I. Obligation to include information about authorisation to work (Article 7(1)) 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. 910

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The extension of the obligation to include the information about the authorisation to 2 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)) See above Article 6 MN 2–5.

3

III. Derogation clauses See above Article 4 MN 8.

4

Article 8 Procedural guarantees 1. 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 withdrawing 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 1 shall specify the court or administrative authority where the person 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 to be processed. Content I. General remarks and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Procedural guarantees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Obligation to state reasons (Article 8(1)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Possibility of legal challenge (Article 8(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Volumes of admission (Article 8(3)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Derogation clauses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 3 5 6 8

I. General remarks and drafting history Article 10 lays down a number of procedural guarantees that apply with regard to any 1 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 reluc- 2 tance of some Member States whose national legislation did not previously require any statement of grounds for refusal of permits.107 The most relevant change in this regard is 107

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the possibility to mount a legal challenge not only in courts (as provided in the Proposal) but also before 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 1. Obligation to state reasons (Article 8(1)) The first guarantee provided for by Article 8(1) is the obligation to state grounds for 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 writing. 4 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. 3

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,108 the Directive provides for the possibility of challenging these decisions before courts or before the competent administrative authorities. This constitutes a relevant clarification (e. g. no indication of this kind is to be found in the Blue Card Directive). 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.

III. Volumes of admission (Article 8(3)) 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 1, and recital 3 of this Directive). It also reflects the wording of Article 79(5) TFEU, which preserves the right of Member States to determine the volumes of admission of third-country nationals coming from third countries to their territory in order to seek work. 7 The uncertainty that surrounds the interpretation of the TFEU with regard to the notion of ‘volumes of admission’109 is therefore also projected into this provision. One plausible interpretation is that, according to Article 8(3), when Member State apply a system based 6

108 109

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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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3

I. General remarks and drafting history This provision establishes the obligation of Member States to provide information 1 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 11(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.

3

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 based on the services actually provided for the processing of applications and the issuance of permits. Iglesias Sa´nchez

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I. Proportionate fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Derogation clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 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 making 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,110 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.111 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. 1

II. Derogation clauses 3

See above Article 4 MN 8.

Article 11 Rights on the basis of the single permit Where a single permit has been issued in accordance with national law, it shall authorise, during 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 holder meets all admission requirements in accordance with national law; (b) have free access to the entire territory of the Member State issuing the single permit within the limits provided for by national law; (c) exercise 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. Content I. General remarks and drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Rights attached to the Single Permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Right of entry and residence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Right of internal free movement (Article 11(a) and (b)) . . . . . . . . . . . . . . . . 110

1 4 4 6

ECJ, Commission v. the Netherlands, C-508/10, EU:C:2012:243. It has to be noted that the object and system put in place by the Single Permit 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. 111

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3. Right to exercise of employment activities (Article 11(c)) . . . . . . . . . . . . . . . 8 4. Right to information (Article 11(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 1 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.112 The fact that these rights are attached to the single permit and enounced in Chapter 2 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 1. Right of entry and residence In the first place, there is a right of entry and residence into the territory of the issuing 4 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 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 11(a) and (b)) The right of free movement within the limits of the territory of the issuing State is 6 expressly provided for in Article 11, 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,113 with the result that the possibility to establish limitations through national law might appear broader. In any case, it has to be noted that the right to internal free movement constitutes a 7 human right. According to Article 2 of Protocol n\ho 4 to the European Convention on Human rights ‘[e]veryone lawfully within the territory of a State shall, within that 112 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. 113 Council doc. 10807/08 of 2 July 2008.

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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.

3. Right to exercise of employment activities (Article 11(c)) 8

According to Article 11, single permit holders are entitled to the exercise of employment activities, in accordance to national law. 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.114

4. Right to information (Article 11(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 11(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

III. Derogation clauses 11

See above Article 4 MN 8.

CHAPTER III RIGHT TO EQUAL TREATMENT Article 12 Right to equal treatment 1. Third-country workers as referred to in points (b) and (c) of Article 3(1) shall enjoy equal treatment with nationals of the Member State 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; 114

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(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 to 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. 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 (f) 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 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 access to housing; 3. The right to equal treatment laid down in paragraph 1 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.

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I. II. III. IV.

General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal scope of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Areas subject to unrestricted equal treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Working conditions (Article 12(1)(a)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Freedom of association and affiliation (Article 12(1)(b)) . . . . . . . . . . . . . . . 3. Recognition of diplomas (Article 12(1)(d)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Advice services of employment offices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Areas in which equal treatment can be limited or derogated from . . . . . . 1. 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)(f) and Article 12(2)(c)) . . . . . . . . . . . . . . . . . . . . . . 4. Access to goods and services (Article 12(1)(h) and Article 12(2)(d)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI. Right of States to withdraw or refuse renewal of permits (Article 12(3)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VII. Export of pensions (Article 12(4)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 7 11 14 16 18 20 22 24 25 30 34 36 40 41

I. General remarks 1

2

3

4

5

Article 12, which is the only Article of Chapter III of the Directive, devoted to the principle of equal treatment, is without doubt the center provision that serves to attain the objective declared in Article 1(1)(b) of laying down a common set of rights for all third-country workers legally residing in the Member States (see above Article 1, MN 3 and 14–16). The principle of equal treatment covers the protection against both direct and indirect discrimination according to the case law of the Court of Justice, as confirmed by the travaux pre´paratoires.115 The applicaton of the equal treatment principle is, nonetheless, non-comprehensive: 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.116 As a result, the level of protection in terms of rights falls below the more integrated category of long-term residents, and the specific privileged group of Bluecard holders.117 The spirit of this provision is well reflected in recital 19, which makes reference to the 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 applying and interpreting the right to equal treatment in the different fields, other 115

Council doc. 6297/09 of 12 February 2009. Peers/Guild/Acosta/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. 117 Article 11 of the Long-term Residents’ Directive 2003/109/EC and Article 14 of the Blue Card Directive 2009/50/EC. 116

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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.118 This has been clearly underlined by the judgment of the Court of Justice in Kamberaj, which concerned the interpretation of the Long Term Residents’ Directive 2003/109/EC.119 The issue of compliance of the standards set out by this Article with those provided 6 in relevant international instruments, such as the European Convention on the Legal Status of Migrant Workers, the ILO Migrant Workers Convention or the European Social Charter, was raised during the negotiations in the Council.120 The International Labour Organization submitted a document expressing her views on the social security and equal treatment/non-discrimination dimensions,121 highlighting the relevance of different international instruments, which had to be duly taken into account.122 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 7 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.123 Even though the Commission’s Proposal already contained considerable possibilities 8 to restrict and to derogate from the equal treatment principle, these possibilities were broadened 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.124 Due to the wide scope of the Directive, it was considered that this provision would 9 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.125 118

Iglesias, EJML (2014). ECJ, Kamberaj, C-571/10, EU:C:2012:233. 120 Council doc. 10807/08 of 2 July 2008. 121 ILO, 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_168535.pdf [last accessed 01 April 2015]. 122 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) Convention, 1975 (No. 143) and the Migrant Workers Recommendation, 1975 (No. 151), which accompanies Convention No. 143. 123 See, in particular, Council doc. 15113/08 of 6 November 2008. 124 See, e. g. Council doc. 10807/08 of 2 July 2008. See Brinkmann, EJML 2014, p. 361. 125 Council doc. 5082/09 of 7 January 2009. 119

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Reference to the specific drafting history will be made in the commentary devoted to each of these fields.

III. Personal scope of application 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 and hold a residence permit (Article 3(1)(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(1)(c)). This leaves outside the application of the equal treatment principle the individuals referred to in Article 3(1)(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. 12 In contrast to the provisions of Chapter II of the Directive, this article is, in principle, 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. 13 Nonetheless, important restrictions have been introduced with regard to the application of the equal treatment principle, which will be examined below. These restrictions apply, mainly, to those who are no longer in employment. This restriction was already contemplated by the Commission’s Proposal, and is 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. 11

IV. Areas subject to unrestricted equal treatment Some of the specific fields listed in this article, to which the principle of equal 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. 15 In this regard, the Commission Proposal provided for the possibility to introduce limitations to the 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.126 14

1. Working conditions (Article 12(1)(a)) 16

Third-country workers are entitled to the right to equal treatment with regard working conditions, which include equal pay and dismissal, as well as health and safety 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.

126

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It is to be noted that the Charter of Fundamental Rights recognizes the right to 17 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 18 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. It has to be noted that two provisions of the Charter of Fundamental Rights have a 19 vital 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-.127

3. Recognition of diplomas (Article 12(1)(d)) Article 12(1)(d) makes the principle of equal treatment applicable to the recognition 20 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’.128 Article 3(3) of Directive 2005/36/EC also establishes certain criteria for assessing formal qualifications issued by third States.129 Recital 13 clarifies that this Directive does not affect the national procedures on 21 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.

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.130 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. 127 Indeed, this provision is relevant, even if the suggestion of France to include in this point a reference to the right to strike was not taken on board, Council doc. 10807/08 of 2 July 2008. 128 Recital 10 of Directive 2005/36/EC. 129 According to this provision, ‘[e]vidence of formal qualifications issued by a third country shall be regarded as evidence of formal qualifications if the holder has three years’ professional experience 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’. 130 See suggestions of the Presidency, Council doc. 12054/08 of 22 July 2008.

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V. Areas in which equal treatment can be limited or derogated from 24

Several material fields to which the equal treatment principle applies, according to Article 12, are subject to specific limitations and possibilities for derogation. These possibilities are regulated in Article 12(2).

1. 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 vocational training. This provision covers not only access to education, but also grants and loans.131 26 Article 12(2)(a) makes available to States very broad possibilities to derogate from the 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, those thirdcountry workers that were admitted under the provisions of the Students Directive 2004/114/EC can be excluded from the application of the principle of equal treatment with regard to education and vocational training. 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. Even if 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.132 27 A further limitation in this field is signalled in recital 27, which was included during negotiations in the Council133 and imported from the Blue Card Directive134 refers to ‘measures in the field of vocational training which are financed under social assistance schemes’. 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’. 25

2. Social security (Article 12(1)(e)) and Article 12(2)(b)) 29

The application of the equal treatment principle in the field of social security was one of the most controversial issues during the negotiations.135 This field is governed by the 131 Even if it is not clear from the wording of Article 12(1)(c), a systematic consideration of point in conjunction with Article 12(2)(a)(iii), which allows Member States to derogate from the equal treatment principle with regard to grants and loans, confirms this interpretation. 132 Council doc. 10807/08 of 2 July 2008. 133 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. 134 Article 14(1)(e) of Council Directive 2009/50/EC. 135 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.

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limited competences of EU law in social security, 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.136 Article 12(1)(e) establishes that the right to equal treatment applies to the branches of 30 social security, as defined in Regulation (EC) No 883/2004. Recital 24 makes clear that the provisions on equal treatment also apply to workers admitted directly from a third country. The Commission’s Proposal contemplated the possibility of a general possibility to limit equal treatment with regard to social security to third-country nationals, except for unemployment benefits. However, during the negotiations, the possibility to exclude unemployment benefits was also considered.137 Finally, the wording of Article 12(2)(b) allows Member States to establish two types of limitations. In any case, recital 25 makes clear that these restrictions should not affect the rights that are conferred in accordance to Regulation (EU) No 1231/2010, which extends 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. In the first place, the first paragraph of Article 12(2)(b) allows Member States to limit 31 the application of the equal treatment principle in the field of social security. But at the same time, this paragraph establishes a limitation to this possibility of derogation: in any case, the application of the principle of equal treatment cannot be restricted with regard to third-country workers who are actually in employment, and to who have been employed during six months and are registered as unemployed.138 This means that Member States are not free to exclude all third country workers who are not in employment. It is important to note that this 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. In the second place, Member States are allowed to establish that the application of the 32 equal 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.139 In the same vein, recital 24 makes explicit that the 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 136

See, i.a. ECJ, F.C. Terhoeve, C-18/95, EU:C:1999:22. Council doc. 5681/09 of 23 January 2009; Council doc. 6297/09 of 12 February 2009. 138 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 unemployed after a minimum period of employment. 139 For the negotiations, see Brinkmann, EJML 2014, p. 362–363. 137

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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). 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. Tax benefits (Article 12(1)(f) and Article 12(2)(c)) 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.140 35 According to Article 12(2)(c), the application of the equal treatment principle can be 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. 34

4. Access to goods and services (Article 12(1)(h) and Article 12(2)(d)) Article 12(1)(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,141 a new sentence was added to clarify that this is without prejudice to the freedom of contract in accordance with Union and national law. 37 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 third-country workers who are currently in employment; second, they can restrict access to housing. 38 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. 39 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’. 36

VI. Right of States to withdraw or refuse renewal of permits (Article 12(3)) 40

Article 12(3) establishes that the right to equal treatment does not affect the right of Member States to withdraw or to refuse the renewal of the residence permits. This 140 141

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provision, introduced at the request of some Member States during the negotiations in the Council,142 mirrors a similar provision contained in the Blue Card Directive,143 and can only be understood in light of the case law of the ECJ with regard to the rights granted by association agreements.144 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.145

VII. Export of pensions (Article 12(4)) The Commission’s Proposal provided for the application of the equal treatment 41 principle to the payment of acquired pensions when moving to a third country. However, this wording was opposed by several Member States146. 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.147 Therefore, it was decided to regulate this issue on a separate paragraph of Article 12 to reflect the principle of reciprocity.148 According to Article 12(4), statutory pensions related to old age, invalidity and death, 42 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.

CHAPTER IV FINAL PROVISIONS Article 13 More favourable provisions 1. 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 States 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. 142

Council doc. 10807/08 of 2 July 2008. Article 14(3) of the Blue Card Directive. 144 Peers/Guild/Acosta/Groenendijk/Moreno Lax, EU Immigration and Asylum Law, p. 227, footnote 40. 145 ECJ, Gattoussi, C-97/05, EU:C:2006:780. 146 Council doc. 10807/08 of 2 July 2008. 147 Council doc. 5681/09 of 23 January 2009. 148 Council doc. 7147/09 of 10 March 2010. 143

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Article 13, which was originally inserted in Chapter III 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,149 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. 3 Due to the importance of several instruments, the European Parliament proposed to 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 of 24 November 1977’.150 Nonetheless, this was not finally reflected in the final wording of the Directive. 4 This provision is in line with the proposal of the Commission. The explanatory 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,151 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 agreements152 and multilateral international conventions prohibiting discrimination on the basis of national origin (such as the International Covenant on Economic, Social and Cultural Rights). 1

Article 14 Information to the general public Each Member State shall make available to the general 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 1. Periodically, and for the first time by 25 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. 149

Article 4 of the Blue Card Directive 2009/50/EC. LIBE Report of 22 October 2010 A7-0265/2010. 151 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. 152 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 1977, 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. 150

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2. Annually, and for the first time by 25 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 protection(19).

Article 16 Transposition 1. Member States shall bring into force the laws, regulations and administrative 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 text 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 Official Journal of the European Union.

Article 18 Addressees This Directive is addressed to the Member States in accordance with the Treaties. (19)

OJ L 199, 31.7.2007, p. 23.

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XI. Directive 2014/36/EU of the European Parliament and of the Council of 26 February 2014 on the conditions of entry and stay of thirdcountry nationals for the purpose of employment as seasonal workers Official Journal L 94, 28/03/2014, p. 375–390 Selected Bibliography: Fudge/Hertzfeld Olsson, ‘The EU Seasonal Workers Directive: When Immigration Controls Meet Labour Rights’, EJML 16 (2014), p. 439–366; Peers et al., EU Immigration and Asylum Law (Text and Commentary), Volume 2, 2nd edition (Martinus Nijhoff, 2012), p. 165–194; To¨tto´s, ‘The Past, the Present and the Future of the Seasonal Workers Directive’, Pe´cs Journal of International and European Law (2014), p. 45–60; Peers, ‘Equal Treatment of Atypical Workers: A New Frontier for EU Law?’, Yearbook of European Law (2013), p. 30–56.

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(1), Having regard to the opinion of the Committee of the Regions(2), Acting in accordance with the ordinary legislative procedure(3), Whereas: (1) For the gradual establishment of an area of freedom, security and justice, the Treaty on the Functioning of the European Union (TFEU) provides for measures to be adopted in the fields of asylum, immigration and protection of the rights of thirdcountry nationals. (2) The TFEU provides that the Union is to develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows and fair treatment of third-country nationals staying legally in Member States. To that end, the European Parliament and the Council are to adopt measures on the conditions of entry and stay of third-country nationals and on the definition of their rights. (3) The Hague Programme, adopted by the European Council on 4 November 2004, recognised that legal migration will play an important role in advancing economic development and asked the Commission to present a policy plan on legal migration, including admission procedures, capable of responding promptly to fluctuating demands for migrant labour in the labour market. (4) The European Council of 14 and 15 December 2006 agreed on a series of steps for 2007. Those steps include the development of well-managed legal immigration policies that fully respect national competences in order to assist Member States in meeting existing and future labour needs. It also called for means to be explored to facilitate temporary migration.

(1)

OJ C 218, 23.7.2011, p. 97. OJ C 166, 7.6.2011, p. 59. (3) Position of the European Parliament of 5 February 2014 (not yet published in the Official Journal) and decision of the Council of 17 February 2014. (2)

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(5) The European Pact on Immigration and Asylum, adopted by the European Council on 16 October 2008, expresses the commitment of the Union and its Member States to conduct a fair, effective and consistent policy for dealing with the challenges and opportunities of migration. The Pact forms the basis of a common immigration policy guided by a spirit of solidarity between Member States and cooperation with third countries and founded on proper management of migratory flows, in the interests not only of the host countries but also of the countries of origin and of the migrants themselves. (6) The Stockholm Programme, adopted by the European Council on 11 December 2009, recognises that labour immigration can contribute to increased competitiveness and economic vitality and that, in the context of the important demographic challenges that will face the Union in the future with an increased demand for labour, flexible immigration policies will make an important contribution to the Union’s economic development and performance in the long term. It also highlights the importance of ensuring fair treatment of third-country nationals staying legally on the territory of the Member States and of optimising the link between migration and development. It invites the Commission and the European Council to continue implementing the Policy Plan on Legal Migration set out in the Commission’s communication of 21 December 2005. (7) This Directive should contribute to the effective management of migration flows for the specific category of seasonal temporary migration and to ensuring decent working and living conditions for seasonal workers, by setting out fair and transparent rules for admission and stay and by defining the rights of seasonal workers while at the same time providing for incentives and safeguards to prevent overstaying or temporary stay from becoming permanent. In addition, the rules laid down in Directive 2009/52/EC of the European Parliament and of the Council(4) will contribute to avoiding such temporary stay turning into unauthorised stay. (8) Member States should give effect to this Directive without discrimination on the basis of sex, race, colour, ethnic or social origin, genetic characteristics, language, religion or beliefs, political or other opinions, membership of a national minority, fortune, birth, disability, age or sexual orientation in accordance, in particular, with Council Directive 2000/43/EC(5) and Council Directive 2000/78/EC(6). (9) This Directive should be without prejudice to the principle of preference for Union citizens as regards access to Member States’ labour market as expressed in the relevant provisions of the relevant Acts of Accession. (10) This Directive should be without prejudice to the right of the Member States to determine the volumes of admission of third-country nationals coming from third countries to their territory for the purposes of seasonal work as specified in the TFEU. (11) This Directive should not affect the conditions of the provision of services in the framework of Article 56 TFEU. In particular, this Directive should not affect the terms and conditions of employment which, pursuant to Directive 96/71/EC of the European Parliament and of the Council(7), apply to workers posted by an under(4) 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 L 168, 30.6.2009, p. 24). (5) Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ L 180, 19.7.2000, p. 22). (6) Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ L 303, 2.12.2000, p. 16). (7) 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 provision of services (OJ L 18, 21.1.1997, p. 1).

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taking established in a Member State to provide a service in the territory of another Member State. (12) This Directive should cover direct working relationships between seasonal workers and employers. However, where a Member State’s national law allows admission of third-country nationals as seasonal workers through employment or temporary work agencies established on its territory and which have a direct contract with the seasonal worker, such agencies should not be excluded from the scope of this Directive. (13) When transposing this Directive, Member States should, where appropriate in consultation with social partners, list those sectors of employment which include activities that are dependent on the passing of the seasons. Activities dependent on the passing of the seasons are typically to be found in sectors such as agriculture and horticulture, in particular during the planting or harvesting period, or tourism, in particular during the holiday period. (14) If so provided under national law and in accordance with the principle of nondiscrimination as set out in Article 10 TFEU, Member States are allowed to apply more favourable treatment to nationals of specific third countries when compared to the nationals of other third countries when implementing the optional provisions of this Directive. (15) It should only be possible to apply for admission as a seasonal worker while the third-country national is residing outside the territory of the Member States. (16) It should be possible to refuse admission for the purposes of this Directive on duly justified grounds. In particular, it should be possible to refuse admission if a Member State considers, on the basis of an assessment of the facts, that the thirdcountry national concerned is a potential threat to public policy, public security or public health. (17) This Directive should be without prejudice to the application of Directive 2008/115/EC of the European Parliament and of the Council(8). (18) This Directive should not adversely affect the rights that have been granted to third-country nationals who are already legally staying in a Member State for the purpose of work. (19) In the case of Member States applying the Schengen acquis in full, Regulation (EC) No 810/2009 of the European Parliament and of the Council(9) (Visa Code), Regulation (EC) No 562/2006 of the European Parliament and of the Council(10) (Schengen Borders Code), and Council Regulation (EC) No 539/2001(11) apply in their entirety. Accordingly, for stays not exceeding 90 days, the conditions for admission of seasonal workers to the territory of the Member States applying the Schengen acquis in full are regulated by those instruments, while this Directive should only regulate the criteria and requirements for access to employment. In the case of Member States not applying the Schengen acquis in full, with the exception of the United Kingdom and Ireland, only the Schengen Borders Code applies. The (8) 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-country nationals (OJ L 348, 24.12.2008, p. 98). (9) 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 L 243, 15.9.2009, p. 1). (10) Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ L 105, 13.4.2006, p. 1). (11) Council Regulation (EC) No 539/2001 of 15 March 2001 listing third countries whose nationals must be in possession of visas when crossing the external borders and those nationals exempt from that requirement (OJ L 81, 21.3.2001, p. 1).

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provisions of the Schengen acquis referred to in this Directive belong to that part of the Schengen acquis in which Ireland and the United Kingdom do not take part and therefore those provisions do not apply to them. (20) Criteria and requirements for admission as well as grounds for refusal and withdrawal or non-extension/non-renewal for stays not exceeding 90 days should be defined in this Directive as far as employment as a seasonal worker is concerned. When short-stay visas are issued for the purpose of seasonal work, the relevant provisions of the Schengen acquis concerning the conditions of entry and stay in the territory of Member States as well as grounds for refusal, extension, annulment or revocation of those visas apply accordingly. In particular, any decision on refusal, annulment or revocation of a visa and the reasons on which it is based should be notified, in accordance with Articles 32(2) and 34(6) of the Visa Code, to the applicant by means of the standard form set out in Annex VI to the Visa Code. (21) For seasonal workers who are admitted for stays of longer than 90 days, this Directive should define both the conditions for admission to and stay in the territory and the criteria and requirements for access to employment in the Member States. (22) This Directive should provide for a flexible entry system based on demand and objective criteria, such as a valid work contract or a binding job offer that specifies the essential aspects of the contract or employment relationship. (23) Member States should have the possibility to apply a test demonstrating that a post cannot be filled from within the domestic labour market. (24) Member States should be able to reject an application for admission in particular when the third-country national has not complied with the obligation arising from a previous admission decision as a seasonal worker to leave the territory of the Member State concerned on the expiry of an authorisation for the purpose of seasonal work. (25) Member States should be able to require the employer to cooperate with the competent authorities and to provide all relevant information needed in order to prevent possible abuse and misuse of the procedure set out in this Directive. (26) Provision for a single procedure leading to one combined permit, encompassing both stay and work, should contribute to simplifying the rules currently applicable in Member States. That should not affect the right of Member States to designate the competent authorities and the way in which they should be involved in the single procedure, in accordance with national specificities of administrative organisation and practice. (27) The designation of the competent authorities under this Directive should be without prejudice to the role and responsibilities of other authorities and, where applicable, the social partners, in accordance with national law and/or practice, with regard to the examination of, and the decision on, the application. (28) This Directive should provide for a degree of flexibility for Member States regarding the authorisations to be issued for the admission (entry, stay and work) of seasonal workers. The issuing of a long-stay visa in accordance with point (a) of Article 12(2) should be without prejudice to the possibility for Member States to issue a prior authorisation to work in the Member State concerned. Nevertheless, in order to ensure that the conditions of employment as provided for by this Directive have been checked and are met, it should be made clear on those authorisations that they were issued for the purpose of seasonal work. Where only short-stay visas are issued, Member States should make use of the ‘remarks’ heading of the visa sticker for that purpose.

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(29) For all stays not exceeding 90 days, Member States should choose to issue either a short-stay visa or a short-stay visa accompanied by a work permit in cases where the third-country national requires a visa in accordance with Regulation (EC) No 539/2001. Where the third-country national is not subject to the visa requirement and where the Member State did not apply Article 4(3) of that Regulation, the Member States should issue a work permit to him or her as an authorisation for the purpose of seasonal work. For all stays exceeding 90 days, Member States should choose to issue one of the following authorisations: a long-stay visa; a seasonal worker permit; or a seasonal worker permit accompanied by a long-stay visa, if the long-stay visa is required under national law for entering the territory. Nothing in this Directive should preclude Member States from delivering a work permit directly to the employer. (30) 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 a seasonal worker permit, the Member State concerned should grant the third-country national every facility to obtain the requisite visa and should ensure that the competent authorities effectively cooperate for that purpose. (31) The maximum duration of stay should be fixed by Member States and limited to a period of between five and nine months which, together with the definition of seasonal work, should ensure that the work is of genuinely seasonal nature. Provision should be made to the effect that within that maximum duration of stay, an extension of the contract or change of employer is possible, provided that the admission criteria continue to be met. That should serve to reduce the risk of abuse that seasonal workers may face if tied to a single employer and at the same time provide for a flexible response to employers’ actual workforce needs. The possibility for the seasonal worker to be employed by a different employer under the conditions laid down in this Directive should not entail the possibility for the seasonal worker to seek employment on the territory of the Member States while being unemployed. (32) When deciding on the extension of stay or the renewal of the authorisation for the purpose of seasonal work, Member States should be able to take into consideration the labour market situation. (33) In cases where a seasonal worker has been admitted for a stay not exceeding 90 days and where the Member State has decided to extend the stay beyond 90 days, the short-stay visa should be replaced either by a long-stay visa or by a seasonal worker permit. (34) Taking into account certain aspects of circular migration as well as the employment prospects of third-country seasonal workers beyond a single season and the interests of Union employers in being able to rely on a more stable and already trained workforce, the possibility of facilitated admission procedures should be provided for in respect of bona fide third-country nationals who have been admitted as seasonal workers in a Member State at least once within the previous five years, and who have always respected all criteria and conditions provided under this Directive for entry and stay in the Member State concerned. Such procedures should not affect, or circumvent, the requirement that the employment be of a seasonal nature. (35) Member States should do their best to ensure that information on conditions of entry and stay, including the rights and obligations and the procedural safeguards as laid down in this Directive and all documentary evidence needed for an application to stay and work in the territory of a Member State as a seasonal worker, is made available to applicants. 932

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(36) Member States should provide for effective, proportionate and dissuasive sanctions against employers in the event of breaches of their obligations under this Directive. Those sanctions could consist of measures as provided for in Article 7 of Directive 2009/52/EC and should include, if appropriate, liability of the employer to pay compensation to seasonal workers. 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. (37) A set of rules governing the procedure for examining applications for admission as a seasonal worker should be laid down. That procedure should be effective and manageable, taking account of the normal workload of Member States’ administrations, as well as transparent and fair, in order to offer appropriate legal certainty to those concerned. (38) In the case of short-stay visas, the procedural safeguards are governed by the relevant provisions of the Schengen acquis. (39) The competent authorities of the Member States should decide on applications for an authorisation for the purpose of seasonal work as soon as possible after they are submitted. In relation to applications for an extension or renewal, where submitted within the period of validity of the authorisation, Member States should 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 employers, due to on-going administrative procedures. Applicants should submit their application for extension or renewal as soon as possible. In any event, the seasonal worker should be allowed to stay on the territory of the Member State concerned, and where appropriate to continue working, until a final decision on the application for an extension or renewal has been taken by the competent authorities. (40) Given the nature of seasonal work, Member States should be encouraged not to charge a fee for the handling of applications. In the event that a Member State nevertheless decides to charge a fee, such a fee should not be disproportionate or excessive. (41) Seasonal workers should all benefit from accommodation that ensures an adequate standard of living. The competent authority should be informed of any change of accommodation. Where the accommodation is arranged by or through the employer the rent should not be excessive compared with the net remuneration of the seasonal worker and compared with the quality of that accommodation, the seasonal worker’s rent should not be automatically deducted from his or her wage, the employer should provide the seasonal worker with a rental contract or equivalent document stating the rental conditions for the accommodation, and the employer should ensure that the accommodation meets the general health and safety standards in force in the Member State concerned. (42) Third-country nationals who are in possession of a valid travel document and an authorisation for the purpose of seasonal work issued under this Directive by a Member State applying the Schengen acquis in full are allowed to enter into and move freely within the territory of the Member States applying the Schengen acquis in full, for a period up to 90 days in any 180-day period in accordance with the Schengen Borders Code and Article 21 of the 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(12) (Schengen Implementing Convention). (12)

OJ L 239, 22.9.2000, p. 19.

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Immigration

(43) Considering the specially vulnerable situation of third-country national seasonal workers and the temporary nature of their assignment, there is a need to provide effective protection of the rights of third-country national seasonal workers, also in the social security field, to check regularly for compliance and to fully guarantee respect for the principle of equal treatment with workers who are nationals of the host Member State, abiding by the concept of the same pay for the same work in the same workplace, by applying collective agreements and other arrangements on working conditions which have been concluded at any level or for which there is statutory provision, in accordance with national law and practice, under the same terms as to nationals of the host Member State. (44) This Directive should apply without prejudice to the rights and principles contained in the European Social Charter of 18 October 1961 and, where relevant, the European Convention on the Legal Status of Migrant Workers of 24 November 1977. (45) In addition to the legislative, administrative and regulatory provisions applicable to workers who are nationals of the host Member State, arbitration decisions and collective agreements and contracts concluded at any level, in accordance with the host Member State’s national law and practice, should also apply to third-country national seasonal workers under the same terms as to nationals of the host Member State. (46) Third-country national seasonal workers should be granted equal treatment in respect of those branches of social security listed in Article 3 of Regulation (EC) No 883/2004 of the European Parliament and of the Council(13). This Directive does not harmonise the social security legislation of Member States and does not cover social assistance. It is limited to applying the principle of equal treatment in the field of social security to the persons falling within its scope. This Directive should not confer more rights than those already provided in existing Union legislation in the field of social security for third-country nationals who have cross-border interests between Member States. Due to the temporary nature of the stay of seasonal workers and without prejudice to Regulation (EU) No 1231/2010 of the European Parliament and of the Council(14), Member States should be able to exclude family benefits and unemployment benefits from equal treatment between seasonal workers and their own nationals and should be able to limit the application of equal treatment in relation to education and vocational training, as well as tax benefits. This Directive does not provide for family reunification. Furthermore, this Directive does not grant rights in relation to situations which lie outside the scope of Union law such as, for example, situations where family members reside in a third country. That should not, however, affect the right of survivors who derive rights from the seasonal worker to receive survivor’s pensions when residing in a third country. This should be without prejudice to the non-discriminatory application by Member States of national law providing for de minimis rules on contributions to pension systems. Mechanisms should be in place in order to ensure effective social security coverage during the stay and the exporting of acquired rights of the seasonal workers, where applicable. (47) Union law does not limit the power of the Member States to organise their social security schemes. In the absence of harmonisation at Union level, it is for each Member (13) Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ L 166, 30.4.2004, p. 1). (14) Regulation (EU) No 1231/2010 of the European Parliament and of the Council of 24 November 2010 extending Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to nationals of third countries who are not already covered by these Regulations solely on the ground of their nationality (OJ L 344, 29.12.2010, p. 1).

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State to lay down the conditions under which social security benefits are granted, as well as the amount of such benefits and the period for which they are granted. However, when exercising that power, Member States should comply with Union law. (48) Any restrictions on equal treatment in the field of social security under this Directive should be without prejudice to the rights conferred in application of Regulation (EU) No 1231/2010. (49) To ensure the proper enforcement of this Directive, and in particular the provisions regarding rights, working conditions and accommodation, Member States should ensure that appropriate mechanisms are in place for the monitoring of employers and that, where appropriate, effective and adequate inspections are carried out on their respective territories. The selection of employers to be inspected should be based primarily on a risk assessment to be carried out 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. (50) To facilitate enforcement of this Directive, Member States should 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. That is 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. Seasonal workers should have access to judicial protection against victimisation as a result of a complaint being made. (51) Since the objectives of this Directive, namely the introduction of a special admission procedure, the adoption of conditions on entry and stay for the purpose of seasonal work by third-country nationals and the definition of their rights as seasonal workers, cannot be sufficiently achieved by the Member States but can rather be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU), taking account of immigration and employment policies at European and national level. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives. (52) This Directive respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union, in particular, Articles 7, 15(3), 17, 27, 28, 31 and 33(2) thereof, in accordance with Article 6 TEU. (53) In accordance with the Joint Political Declaration of Member States and the Commission on explanatory documents of 28 September 2011(15), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified. (54) In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Directive, and are not bound by it or subject to its application. (55) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Directive, and is not bound by it or subject to its application, (15)

OJ C 369, 17.12.2011, p. 14.

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Part C XI Art. 1

Immigration

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I GENERAL PROVISIONS Article 1 Subject-matter 1. 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 workers. 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 I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Introduction and Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Drafting History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Legal Basis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 1 3 5

I. General remarks 1. Introduction and Purpose Directive 2014/36/EU determines the conditions for the entry and residence of non-EU 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:1 1. 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. 2 The Directive 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. In the explanatory memorandum to its proposal,2 the Commission emphasised the potential of the Directive to prevent irregular migration and employment, in 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. 1

2. Drafting History 3

As with many other EU migration law instruments, the adoption of the Seasonal Workers Directive was preceded by tough negotiations and a lengthy decision-making 1 2

Recital 7. Commission Proposal, COM(2010) 370 final, p. 2, 3.

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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 Directive on intra-corporate transferees 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 2010,3 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 is 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 20134 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.5 Crucially, the Council introduced a provision, explicitly empowering the Member States to control the number of third-country national workers entering their territory.

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. It has been argued in the academic literature6 that the legal basis should have been 6 supplemented by Article 153(1)(g) TFEU, which deals with employment conditions for third-country nationals legally residing in Union territory.7 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. In fact, this argument was also made by Bulgaria during the negotiations on the Directive in the Council,8 as well as by the European Parliament Employment Committee.9 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 third-country nationals generally.10 3

Ibid. European Parliament, doc. A7-0428/2013 of 3 December 2013. 5 See for example Council doc. 1057/11 of 27 May 2011, see also Peers et al., EU Immigration and Asylum Law (Text and Commentary), p. 176. 6 Peers et al., EU Immigration and Asylum Law, p. 177. 7 Peers, ‘EU Justice and Home Affairs Law (Non-Civil)’, in: Craig/De Burca (eds), The Evolution of EU Law, 2nd edition (OUP, 2011), p. 269, 291. 8 Council doc. 1057/11 of 27 May 2011. 9 European Parliament doc. AL\879782 of 23 November 2011. 10 Peers, EU Justice and Home Affairs Law, p. 394. 4

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Part C XI Art. 2

Immigration

Article 2 Scope 1. 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 workers. 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 partners, list those sectors 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 partners. 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 members 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(16); (c) together with their family members, 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. Content Scope of Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Personal scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Material scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Territorial scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 1 3 4

Scope of Application 1. Personal scope 1

Article 2 defines the personal scope of the Directive. The Directive applies to thirdcountry 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. (16) 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. 77).

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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 directive11 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 process12 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).

3. Territorial scope The Directive applies to all EU Member States, with the exception of Denmark, the 4 UK and Ireland.13 It is spelled out in Article 2(1) of the Directive that for stays not exceeding 90 days in 5 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 11 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 provision of services. 12 In this context Article 152 TFEU is of relevance, according to which the Union recognises and promotes the role of the social partners, taking into account the diversity of national systems. 13 Denmark has a permanent opt-out, whereas the UK and Ireland decided not to opt in (recitals 54 and 55).

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Part C XI Art. 3 (c)

(d)

(e)

(f)

(g)

(h)

(i)

Immigration

seasons, under one or more fixed-term work contracts concluded directly between that third-country national and the employer established in that Member State; ‘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; ‘seasonal worker permit’ means an authorisation issued using the format laid down in Council Regulation (EC) No 1030/2002(17) 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; ‘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; ‘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; ‘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; ‘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 State that issued the authorisation under this Directive; ‘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. Content 1. Seasonal worker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Activity depending on the passing of the seasons. . . . . . . . . . . . . . . . . . . . . . . . . . .

1 5

1. 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. 2 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. 3 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). 1

(17) 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. 1).

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The requirement of a work contract concluded ‘directly between employer and third- 4 country national’ demands a close organisational proximity between contractual performance and the creditor of seasonal work, but does not prohibit hiring the worker through temporary employment agencies. 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 constructions for payment and deductions from wages for rent and premiums.14 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.15

2. Activity depending on the passing of the seasons The activity must be tied to a certain time of the year by a recurring event or pattern 5 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 of labour 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.

Article 4 More favourable provisions 1. 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 provisions for third-country 1 nationals contained in bilateral and multilateral agreements or national legislation. 14 Rijken, ‘Preventing exploitation through the seasonal workers directive’, UACES Conference Paper (2014), p. 3. 15 Council doc. 5611/12 of 23 January 2012.

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Part C XI Art. 5

Immigration

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.16

CHAPTER II CONDITIONS OF ADMISSION Article 5 Criteria and requirements for admission for employment as a seasonal worker for stays not exceeding 90 days 1. 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 to in point (a) of paragraph 1 comply with applicable law, collective agreements and/or practice. 3. On the basis of the documentation provided pursuant to paragraph 1, Member States shall require that the seasonal worker will have no recourse 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(1), Member States not applying the Schengen acquis in full shall verify that the thirdcountry national: (a) does not present a risk of illegal immigration; 16

Fudge/Herzfeld Olsson, EJML (2014), p. 439, 450. 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). (18)

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(b) intends to leave the territory of the Member States at the latest on the date of expiry of the authorisation. Content I. General requirements for admission for employment not exceeding 90 days. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1. Work contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2. Sickness insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3. Adequate Accommodation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 II. Member State specific requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 1. 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 1. Work contract 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 1 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 5(1)(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.17 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. 17

COM(2010) 379 final, p. 5.

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2. Sickness insurance Article 5(1)(b) requires the applicant to have sickness insurance coverage. If provided 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. 7 Similar requirements are laid down in Article 5(1)(e) of the Blue Card Directive 2009/ 50/EC as well as in Article 6(2)(c) of Directive 2005/71EC 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,18 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.19 6

3. Adequate Accommodation 8

Under Article 5(1)(c) the applicant needs to provide evidence20 of having adequate 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 9

Article 5(2) obliges the Member State to require the working conditions of the work 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 10

Article 5(3) is meant to ensure that the seasonal worker is denied access to national 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 18

Guild, CEPS Policy Brief no 145 (2007), p. 6. Hailbronner/Schmidt, ‘Council Directive 2009/50/EC’, in: Hailbronner (ed), European Immigration and Asylum Law. A Commentary (Hart Publishing, 2010), MN 12. 20 Evidence can be a (valid) rental contract with a third party or a commitment from the employer with the same legal value. 19

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which social assistance may be added to remuneration in case minimum living expenses would otherwise not be covered.21

3. Additional requirements for Member States not fully applying the Schengen acquis Article 5(5) is addressed to Member States which do not yet fully apply the Schengen 11 acquis, at present Bulgaria, Croatia, Cyprus and Romania.22 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. A risk of irregular immigration for the purpose of the Directive exists in case of an 12 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. Moreover, Article 5(5) requires verification of the applicant’s intention not to over- 13 stay 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.

Article 6 Criteria and requirements for admission as a seasonal worker for stays exceeding 90 days 1. 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 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 21 Note e. g. in Germany the ‘Aufstocker’-problem, where social assistance can be paid additionally to work-remuneration in lower paid employer-employee relationships. 22 The UK and Ireland are also not part of the Schengen area, but have opted out of the Directive.

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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 1 comply with applicable law, collective agreements and/or practice. 3. On the basis of the documentation provided pursuant to paragraph 1, 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. 5. 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. . . . 1. Compulsory documentation of work contract, sickness insurance and accommodation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Sufficient resources. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. No threat to public policy, public security or public health . . . . . . . . . . . .

1 1 2 3

I. Admission criteria for seasonal workers staying longer than 90 days 1. Compulsory documentation of work contract, sickness insurance and accommodation 1

Just as with seasonal workers entering for shorter stays (Article 5(1)), the applicant needs to present documentation of a work contract or binding job offer (if possible according to national law) specifying the items listed under Article 6(1)(a). Even though the wording of Article 6(1) is identical to Article 5(1), 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 946

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evidence for adequate accommodation (Article 6(1)(c)) may differ because of presumably higher rental securities that a rental party is entitled to claim under national law.

2. Sufficient resources In contrast to the regime for short-term stays under Article 5, the applicant needs to 2 prove that he/she possesses sufficient 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 EU Blue Card Directive,23 the Researchers Directive24 and the Students Directive.25 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 Directive on Family Reunification.26 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 Just as the Directives on Students, Researchers and Highly Skilled Workers, Arti- 3 cle 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’. The concept of ‘public policy, public security’ is subject to discussion.27 It covers a 4 large spectrum of interests which go further than protection against criminal activities. Yet, 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. It should be noted, however, that the interpretation of the concepts of public policy 5 and public 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.28

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 its territory for the purpose 23

Article 9(3)(b) of Directive 2009/50/EC. Article 6(2)(b) of Directive 2005/71/EC. 25 Article 7(1)(b) of Directive 2004/114/EC. 26 Article 7(1)(c) of Directive 2003/86/EC. 27 See for example Kluth, ‘Der Aufenthalt von Forschern nach § 20 AufenthG’, Zeitschrift fu ¨r Ausla¨nderrecht und Ausla¨nderpolitik 7 (2008), p. 234, 237. 28 Hailbronner/Schmidt, ‘Council Directive 2009/50/EC’, in Hailbronner (ed.), European Immigration and Asylum Law. A Commentary (Hart Publishing, 2010), MN 15. 24

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of seasonal work. On this basis, an application for an authorisation for the purpose of seasonal work may be either considered inadmissible or be rejected. 1

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 contains a similarly worded provision,29 but does not explicitly classify volumes of admission as a consideration for inadmissibility or a ground for rejection. The Blue Card Directive 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.30 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 order to facilitate re-entry, previous admission as seasonal workers may be taken into account when deciding on admission under a set quota.31

Article 8 Grounds for rejection 1. 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:

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Article 6 of Blue Card Directive 2009/50/EC. Rectial 7 of Direcitve 2009/50/EC. 31 Article 16(2)(d). 30

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(a) the employer has failed to meet its legal obligations regarding social security, taxation, labour rights, working conditions or terms of employment, as provided 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 1, 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Non-compliance with conditions for admission . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Fraud/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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Labour market test and community preference principle . . . . . . . . . . . . . . . 2. Employer-related grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Non-compliance with obligations arising from previous admission . . . 4. Individual case clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 1 2 3 4 5 5 6 7 8

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 1 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(1)(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

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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 4

For the issuing of short-stay visas, the mandatory grounds of refusal contained in Article 32 of the Visa 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 1. Labour market test and community preference principle 5

Article 8(3) allows Member States to reject applications for the purpose of seasonal work if the vacancy could be filled by Member State nationals, other Union citizens or lawfully residing third-country nationals. This provision is intended to ensure that Member States have the possibly to apply a labour market test, demonstrating that the position cannot be filled from within the domestic labour market.32 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.33

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.

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Recital 23. See for example Annex V para 2 et seqq. Of the Act of Accession for Croatia of December 5th 2011.

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3. Non-compliance with obligations arising from previous admission Member States may reject an application on the basis of the applicant’s failure to 7 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.34 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 Parliament.35

4. Individual case clause Article 8(5) obliges Member States to take into account the specific circumstances of 8 each individual case, including the interests of the seasonal worker, and to respect the principle of proportionality. The case law of the CJEU on the Directive on Family Reunification (2003/86/EC) illustrates the importance of an individual case clause in the application of the Directive.36 The Court has emphasised the obligation of Member States to make a comprehensive assessment of all relevant factors in each individual case. As opposed to the Directive on Family Reunification,37 the Seasonal Workers Directive does not specify what kind of circumstances are to be taken into account, 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.38

Article 9 Withdrawal of the authorisation for the purpose of seasonal work 1. 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: 34

Recital 24. Council doc. 15033/13 of 25 October 2013. 36 ECJ, O. & S., C-356/11 and C-357/11, ECLI:EU:C:2012:776, para 81. 37 Article 17 of Directive 2003/86/EC. 38 See by analogy ECJ, Chakroun, C-578/08, ECLI:EU:C:2010:117, para 43. 35

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(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, taxation, 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 States 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 Council(19) or for protection in accordance with national law, international obligations or practice of the Member State concerned. 5. Without prejudice to paragraph 1, 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. Content I. Compulsory grounds for withdrawal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Discretionary grounds for withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Individual case clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 5

I. Compulsory grounds for withdrawal 1

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 States 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 2

Non-compliance with Articles 5 and 6 of the Directive after the granting of an authorisation for seasonal work are eligible 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 with(19) 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).

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Art. 10

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drawal is not mandatory in case the seasonal worker becomes a threat to public policy, public security or public health after admission. The possibilities for national authorities to withdraw a permit in cases where the 3 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 thirdcountry national seasonal workers and to provide for an effective protection of rights.39 Article 9(4) allows Member States to consider a discretionary-based withdrawal of the 4 application if the person concerned applies for international protection under the 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 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 noncompliance of an employer’s obligation 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 1 employer to provide all relevant information in 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).

39

Recital 43.

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Part C XI Art. 12

Immigration

CHAPTER III PROCEDURE AND AUTHORISATIONS FOR THE PURPOSE OF SEASONAL WORK Article 11 Access to information 1. 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 procedures. Content I. Information obligations of Member States prior to application . . . . . . . . . . II. Obligation to inform about rights and obligation upon admission . . . . . .

1 2

I. Information obligations of Member States prior to application 1

Article 11(1) obliges Member States to make ‘easily accessible’ information on all documentary evidence needed for an application (Article 12) and information on entry and stay, including the rights (Article 22 et seqq.) and obligations as well as the procedural safeguards (Article 18) of the seasonal worker. In contrast to Article 11(2), requiring written form, Article 11(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. Access to the 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. It is unclear if Article 11(2) only covers first-time authorisations or also renewals and extensions.

Article 12 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 5 and do not fall within the grounds set out in 954

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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(20): (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 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 to in points (b) and (c) of the first subparagraph of paragraph 2 shall be issued by the competent authorities of the Member States using the format laid down in Regulation (EC) No 1030/2002. Member States shall enter a reference on the permit stating that it is issued for the purpose of seasonal work. 5. In the case 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 1030/2002 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 first 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 first subparagraph 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. (20) Council Regulation (EC) No 1683/95 of 29 May 1995 laying down a uniform format for visas (OJ L 164, 14.7.1995, p. 1).

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Part C XI Art. 13

Immigration Content

I. Authorisations not exceeding 90 days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Authorisations exceeding 90 days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Formal requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 3

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(1)(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 1. 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 EU Blue Card Directive, 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 1

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Art. 14

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for a more efficient procedure for migrants and future employers.40 Hence, in cases where more than one authority appears competent under national law, the Member States may be required to re-allocate competences in the implementation process, so as to ensure that a single authority is responsible for receiving and issuing seasonal worker permits.

Article 14 Duration of stay 1. Member States shall determine a maximum period of stay for seasonal workers which shall be not less than five months and not more than nine months in any 12month 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 workers. That period shall be not less than the maximum period of stay determined pursuant to paragraph 1. Content I. Maximum period of stay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Maximum period of employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3

I. Maximum period of stay Article 14(1) obliges Member States to determine maximum periods of stay for 1 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,41 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. Yet, even though the third-country national must in principle leave the territory of the Member States upon expiry of that 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 In addition, Member States may decide to impose a temporal limitation on the 3 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. 40

Recital 3 of Directive 2011/98/EU. 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. 41

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Part C XI Art. 15

Immigration

Article 15 Extension of stay or renewal of the authorisation for the purposes of seasonal work 1. Within the maximum period referred to in Article 14(1) and provided that Articles 5 or 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, 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(1) and provided that Articles 5 or 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 1 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. 7. Member States shall refuse to extend the stay or renew the authorisation for the purpose of seasonal work where the maximum duration 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 practice 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 paragraph 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 circumstances of the case, including the interests of the seasonal worker, and respect the principle of proportionality.

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Art. 15

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Content 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)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 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 1 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.42 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.

III. Discretion to refuse extensions of stay or renewing the authorisation (Article 15(6), (8)) Article 15(6) and (8) grants Member States discretion to refuse to extend the stay or 3 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 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 seasonal 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(11))43 and the Member State can reasonably be required to demonstrate why such considerations were not relevant at the time of granting the permit. 42

Fudge/Herzfeld Olsson, EJML (2014), p. 439, 461. This may for example be the case if the seasonal worker has proved his or her reliability regarding obligations deriving from this Directive. 43

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Part C XI Art. 16

Immigration

Article 16 Facilitation of re-entry 1. Member States shall facilitate re-entry of third-country nationals who were admitted to that Member State as seasonal workers at least once within the previous five years, 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 1 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 act; (c) an accelerated procedure leading to a decision on the application for a seasonal worker permit or a long stay visa; (d) priority in examining 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.

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 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. 2 The facilitated re-entry procedure for a subsequent season is one of the key 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 skills44 and investment to third countries, thus reducing poverty and contributing to the EU’s development policy. 3 Article 16(2) contains a list of possible facilitation measures, which include exempting 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.45 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 1

44 45

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Recital 34. Commission Proposal, COM(2010) 379 final.

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Art. 17

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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.

Article 17 Sanctions against employers 1. 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. 3. Where the employer is a subcontractor who has infringed this Directive and where the main contractor and any intermediate subcontractor 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 1; (b) in addition to or in place of the 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 I. Sanctions for employers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Liability and compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Sanctions for subcontractor as employers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 6

I. Sanctions for employers Article 17(1) obliges Member States to install a sanction mechanism for employers 1 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

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Part C XI Art. 17

Immigration

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 Employer Sanctions Directive 2009/52/EC,46 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.

II. Liability and compensation Applicable sanctions must include liability of the employer to pay compensation to 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. ‘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. 4 It is questionable whether the provisions on liability and compensation are sufficient 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. 5 As recently highlighted by the European Commission within the context of an evaluation of the Employer Sanctions Directive 2009/52,47 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 requires Member States to monitor and sanction infringements of this Directive, but provides for systematic inspections only in accordance with national law and practice provides sufficient safeguards to prevent abuse (see below Article 24). 3

46 47

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Art. 18

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III. Sanctions for subcontractor as employers In the case of sub-contracting, the chain of liability for infringements under the 6 Directive extends to the main contractor 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.

Article 18 Procedural safeguards 1. 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 taken; (b) allow the seasonal worker to work until that decision is taken. 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 1 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. Wiesbrock/Jo¨st/Desmond

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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. Content I. Procedural safeguards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Right to stay during an extension or renewal procedure . . . . . . . . . . . . . . . . . .

1 2

I. Procedural safeguards 1

The procedural safeguards in the Seasonal Workers Directive are similar to those to be found in other EU migration law instruments, such as the EU Blue Card Directive and the Directives on Students and Researchers. As in the case of highly-skilled 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 2

A seasonal worker who makes use of his right to extend his stay or have his 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 1. 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 964

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Art. 20

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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 the Member State concerned and the return journey; (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 1 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.48 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.49 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.50 This is also specified in Article 19(1) 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; 48

Council Doc. 15033/13 of 25 October 2013. Council Doc. 6651/12 of 27 February 2012. 50 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. ECJ, Commission v Netherlands, C-508/10, ECLI:EU:C:2012:243. 49

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(c) the employer shall ensure that the accommodation meets the general health and safety standards in force in the Member State concerned. 1

The accommodation requirement in Article 20 is linked to Article 6(1)(c), which requires evidence that the seasonal worker will have adequate accommodation as a condition for admission. Inadequate living conditions of temporary migrant workers has 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. 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. 1

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 shall 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. 1

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Art. 23

Part C XI

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.51

Article 23 Right to equal treatment 1. 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; (f) 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 treatment: (i) under point (d) of the first subparagraph of paragraph 1 by excluding family benefits and unemployment benefits, without prejudice to Regulation (EU) No 1231/2010; (ii) under point (g) of the first subparagraph of paragraph 1 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 loans 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 51

Recital 42.

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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 1 shall be without prejudice to the right of the Member State to withdraw or to refuse to extend or renew the authorisation for the purpose of seasonal work in accordance with Articles 9 and 15. Content I. General Remarks and Drafting History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Right to equal treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Social security benefits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Back payments and pension rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. No right to family reunification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Further restrictions of equal treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 5 6 8 9

I. General Remarks and Drafting History As a consequence of the sectoral approach to labour migration, the degree of 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 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.52 2 Considering the especially vulnerable situation of third-country national seasonal 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.53 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.54 3 In the Commission proposal, Article 16(1) did not provide for equal treatment with nationals of the host Member States as regards working conditions. This was criticised by the ILO, which noted that ILO 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 ILO fundamental principles and rights at work, and the subject of a core ILO legally binding instrument, namely the Discrimination (Employment 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.55 The failure to include equal treatment 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’.56 The right to 1

52

See generally, Fudge/Herzfeld Olsson, EJML (2014), p. 439. Recital 43. 54 Recitals 44 and 45. 55 Council doc. 9564/11 of 2 May 2011. 56 Peers et al., EU Immigration and Asylum Law, p. 181. 53

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Art. 23

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equal treatment was, however, considerably strengthened by amendments proposed by the European Parliament, which introduced most of the equal treatment rights listed below.

II. Right to equal treatment Under the final version of the Directive, seasonal workers enjoy equal treatment 4 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 Seasonal workers must be granted equal treatment with regards to those branches of 5 social security that are listed in Article 3 of 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.57 The Directive therefore derogates from the two ILO migrant workers conventions, which provide for equal treatment with respect to unemployment and family responsibilities.58

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 will not lose their entitlements to receive statutory pensions based on previous employment and acquired in accordance with Article 3 of Regulation (EC) No 883/2004.

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. However, the rights of seasonal workers differ from those of highly skilled workers in one important respect: the seasonal workers Directive does not 57 58

Recital 46. Fudge/Herzfeld, EJML (2014), p. 438, 458.

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Part C XI Art. 24

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provide for a right to family reunification.59 The absence of the right to family reunification was criticised by a coalition of NGOs.60 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.

4. Further restrictions of equal treatment 9

In addition to the absence of a right to family reunification and no mandatory equal treatment in terms of family and unemployment benefits, the Member States may limit the application of equal treatment in relation to education and vocational training as well as tax benefits. These limitations are supposed to be justified on grounds of the temporary nature of the seasonal workers’ stay.61

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 workers, 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). 1

59

See recital 46. Joint NGO Statement, EU Seasonal Migrant Workers’ Directive: Full Respect of Equal Treatment Necessary, 20 April 2011. 61 Recital 46. 60

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Art. 25

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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 activities62 was thus not taken up in the final version of the Directive.

Article 25 Facilitation of complaints 1. Member States shall ensure that there are effective mechanisms through which seasonal workers 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, excluding 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 1 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.63 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.64 Seasonal workers should also have access to judicial protection against victimisation as 3 a result of a complaint being made.65 They must therefore be granted access to 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.

62

EESC opinion doc. SOC/392 of 8 April 2011. Recital 50. 64 Recital 38. 65 Recital 50. 63

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Part C XI Art. 26–30

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CHAPTER V FINAL PROVISIONS Article 26 Statistics 1. Member States shall communicate to the Commission statistics on the number of authorisations for the purpose of seasonal work issued for the first 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 withdrawn. 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 1 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 1 shall be communicated in accordance with Regulation (EC) No 862/2007 of the European Parliament and of the Council(21).

Article 27 Reporting Every three years, and for the first time no later than 30 September 2019, the Commission 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 1. 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.

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. (21) 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 311/76 on the compilation of statistics on foreign workers (OJ L 199, 31.7.2007, p. 23).

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Article 30 Addressees This Directive is addressed to the Member States, in accordance with the Treaties.

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XII. 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 Official Journal L 157, 27/05/2014, p. 1–22 Selected Bibliography: Bayreuther, ‘Arbeitsrecht im Richtlinienvorschlag zur konzerninternen Versendung von Drittstaatsangeho¨rigen (ICT-Richtlinie)’, Zeitschrift fu¨r europa¨isches Sozial- und Arbeitsrecht (2012), p. 405; Klaus, ‘Die ICT-Richtlinie – Ende einer europa¨ischen Odyssee’, Zeitschrift fu¨r Ausla¨nderrecht (2015), p. 1; Kuczynski/Solka, ‘Die Hochqualifiziertenrichtlinie’, Zeitschrift fu¨r Ausla¨nderrecht (2009), p. 219; Peers, ‘Legislative Update: EU Immigration and Asylum Competence and DecisionMaking in the Treaty of Lisbon’, EJML 2008 (10), p. 219.

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(1), Having regard to the opinion of the Committee of the Regions(2), Acting in accordance with the ordinary legislative procedure(3), Whereas: (1) For the gradual establishment of an area of freedom, security and justice, the Treaty on the Functioning of the European Union (TFEU) provides for measures to be adopted in the field of immigration which are fair towards third-country nationals. (2) The TFEU provides that the Union is to develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows and fair treatment of third-country nationals residing legally in Member States. To that end, the European Parliament and the Council are to adopt measures on the conditions of entry and residence, and standards on the issue by Member States of long-term visas and residence permits, as well as 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. (3) The Commission’s Communication of 3 March 2010 entitled ‘Europe 2020: A strategy for smart, sustainable and inclusive growth’ sets the objective of the Union becoming an economy based on knowledge and innovation, reducing the administrative burden on companies and better matching labour supply with demand. Measures to make it easier for third-country managers, specialists and trainee employees to enter the Union in the framework of an intra-corporate transfer have to be seen in that broader context.

(1)

OJ C 218, 23.7.2011, p. 101. OJ C 166, 7.6.2011, p. 59. (3) Position of the European Parliament of 15 April 2014 (not yet published in the Official Journal [Author’s note: European Parliament document P7_TA(2014)0369]) and decision of the Council of 13 May 2014. (2)

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(4) The Stockholm Programme, adopted by the European Council on 11 December 2009, recognises that labour immigration can contribute to increased competitiveness and economic vitality and that, in the context of the important demographic challenges that will face the Union in the future and, consequently, an increased demand for labour, flexible immigration policies will make an important contribution to the Union’s economic development and performance in the longer term. The Stockholm Programme thus invites the Commission and the Council to continue implementing the Policy Plan on Legal Migration set out in the Commission’s Communication of 21 December 2005. (5) As a result of the globalisation of business, increasing trade and the growth and spread of multinational groups, in recent years movements of managers, specialists and trainee employees of branches and subsidiaries of multinationals, temporarily relocated for short assignments to other units of the company, have gained momentum. (6) Such intra-corporate transfers of key personnel result in new skills and knowledge, innovation and enhanced economic opportunities for the host entities, thus advancing the knowledge-based economy in the Union while fostering investment flows across the Union. Intra-corporate transfers from third countries also have the potential to facilitate intra-corporate transfers from the Union to third-country companies and to put the Union in a stronger position in its relationship with international partners. Facilitation of intra-corporate transfers enables multinational groups to tap their human resources best. (7) The set of rules established by this Directive may also benefit the migrants’ countries of origin as this temporary migration may, under its well-established rules, foster transfers of skills, knowledge, technology and know-how. (8) This Directive should be without prejudice to the principle of preference for Union citizens as regards access to Member States’ labour market as expressed in the relevant provisions of the relevant Acts of Accession. (9) This Directive should be without prejudice to the right of Member States to issue permits other than intra-corporate transferee permits for any purpose of employment if a third-country national does not fall within the scope of this Directive. (10) This Directive should establish a transparent and simplified procedure for admission of intra-corporate transferees, based on common definitions and harmonised criteria. (11) Member States should ensure that appropriate checks and effective inspections are carried out in order to guarantee the proper enforcement of this Directive. The fact that an intra-corporate transferee permit has been issued should not affect or prevent the Member States from applying, during the intra-corporate transfer, their labour law provisions having – in accordance with Union law – as their objective checking compliance with the working conditions as set out in Article 18(1). (12) The possibility for a Member State to impose, on the basis of national law, sanctions against an intra-corporate transferee’s employer established in a third country should remain unaffected. (13) For the purpose of this Directive, intra-corporate transferees should encompass managers, specialists and trainee employees. Their definition should build on specific commitments of the Union under the General Agreement on Trade in Services (GATS) and bilateral trade agreements. Since those commitments undertaken under GATS do not cover conditions of entry, stay and work, this Directive should complement and facilitate the application of those commitments. However, the scope of the intra-corporate transfers covered by this Directive should be broader than that implied by trade commitments, as the transfers do not necessarily take Lo¨rges

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place within the services sector and may originate in a third country which is not party to a trade agreement. (14) To assess the qualifications of intra-corporate transferees, Member States should make use of the European Qualifications Framework (EQF) for lifelong learning, as appropriate, for the assessment of qualifications in a comparable and transparent manner. EQF National Coordination Points may provide information and guidance on how national qualifications levels relate to the EQF. (15) Intra-corporate transferees should benefit from at least the same terms and conditions of employment as posted workers whose employer is established on the territory of the Union, as defined by Directive 96/71/EC of the European Parliament and of the Council(4). Member States should require that intra-corporate transferees enjoy equal treatment with nationals occupying comparable positions as regards the remuneration which will be granted during the entire transfer. Each Member State should be responsible for checking the remuneration granted to the intra-corporate transferees during their stay on its territory. That is intended to protect workers and guarantee fair competition between undertakings established in a Member State and those established in a third country, as it ensures that the latter will not be able to benefit from lower labour standards to take any competitive advantage. (16) In order to ensure that the skills of the intra-corporate transferee are specific to the host entity, the transferee should have been employed within the same group of undertakings from at least three up to twelve uninterrupted months immediately prior to the transfer in the case of managers and specialists, and from at least three up to six uninterrupted months in the case of trainee employees. (17) As intra-corporate transfers constitute temporary migration, the maximum duration of one transfer to the Union, including mobility between Member States, should not exceed three years for managers and specialists and one year for trainee employees after which they should leave for a third country unless they obtain a residence permit on another basis in accordance with Union or national law. The maximum duration of the transfer should encompass the cumulated durations of consecutively issued intra-corporate transferee permits. A subsequent transfer to the Union might take place after the third-country national has left the territory of the Member States. (18) In order to ensure the temporary character of an intra-corporate transfer and prevent abuses, Member States should be able to require a certain period of time to elapse between the end of the maximum duration of one transfer and another application concerning the same third-country national for the purposes of this Directive in the same Member State. (19) As intra-corporate transfers consist of temporary secondment, the applicant should provide evidence, as part of the work contract or the assignment letter, that the third-country national will be able to transfer back to an entity belonging to the same group and established in a third country at the end of the assignment. The applicant should also provide evidence that the third-country national manager or specialist possesses the professional qualifications and adequate professional experience needed in the host entity to which he or she is to be transferred. (20) Third-country nationals who apply to be admitted as trainee employees should provide evidence of a university degree. In addition, they should, if required, present a training agreement, including a description of the training programme, its duration (4) 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 provision of services (OJ L 18, 21.1.1997, p. 1).

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and the conditions in which the trainee employees will be supervised, proving that they will benefit from genuine training and not be used as normal workers. (21) Unless it conflicts with the principle of preference for Union citizens as expressed in the relevant provisions of the relevant Acts of Accession, no labour market test should be required. (22) A Member State should recognise professional qualifications acquired by a third-country national in another Member State in the same way as those of Union citizens and should take into account qualifications acquired in a third country in accordance with Directive 2005/36/EC of the European Parliament and the Council(5). Such recognition should be without prejudice to any restrictions on access to regulated professions deriving from reservations to the existing commitments as regards regulated professions made by the Union or by the Union and its Member States in the framework of trade agreements. In any event, this Directive should not provide for a more favourable treatment of intra-corporate transferees, in comparison with Union or European Economic Area nationals, as regards access to regulated professions in a Member State. (23) This Directive should not affect the right of the Member States to determine the volumes of admission in accordance with Article 79(5) TFEU. (24) With a view to fighting possible abuses of this Directive, Member States should be able to refuse, withdraw or not renew an intra-corporate transferee permit where the host entity was established for the main purpose of facilitating the entry of intra-corporate transferees and/or does not have a genuine activity. (25) This Directive aims to facilitate mobility of intra-corporate transferees within the Union (‘intra-EU mobility’) and to reduce the administrative burden associated with work assignments in several Member States. For this purpose, this Directive sets up a specific intra-EU mobility scheme whereby the holder of a valid intra-corporate transferee permit issued by a Member State is allowed to enter, to stay and to work in one or more Member States in accordance with the provisions governing short-term and long-term mobility under this Directive. Short-term mobility for the purposes of this Directive should cover stays in Member States other than the one that issued the intra-corporate transferee permit, for a period of up to 90 days per Member State. Long-term mobility for the purposes of this Directive should cover stays in Member States other than the one that issued the intra-corporate transferee permit for more than 90 days per Member State. In order to prevent circumvention of the distinction between short-term and long-term mobility, short-term mobility in relation to a given Member State should be limited to a maximum of 90 days in any 180-day period and it should not be possible to submit a notification for short-term mobility and an application for long-term mobility at the same time. Where the need for longterm mobility arises after the short-term mobility of the intra-corporate transferee has started, the second Member State may request that the application be submitted at least 20 days before the end of the short-term mobility period. (26) While the specific mobility scheme established by this Directive should lay down autonomous rules regarding entry and stay for the purpose of work as an intracorporate transferee in Member States other than the one that issued the intracorporate transferee permit, all the other rules governing the movement of persons across borders as laid down in the relevant provisions of the Schengen acquis continue to apply. (5) Directive 2005/36/EC of the European Parliament and the Council of 7 September 2005 on the recognition of professional qualifications (OJ L 255, 30.9.2005, p. 22).

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(27) In order to facilitate checks, if the transfer involves several locations in different Member States, the competent authorities of second Member States should be provided where applicable with the relevant information. (28) Where intra-corporate transferees have exercised their right to mobility, the second Member State should, under certain conditions, be in a position to take steps so that the intra-corporate transferees’ activities do not contravene the relevant provisions of this Directive. (29) Member States should provide for effective, proportionate and dissuasive sanctions, such as financial sanctions, to be imposed in the event of failure to comply with this Directive. Those sanctions could, inter alia, consist of measures as provided for in Article 7 of Directive 2009/52/EC of the European Parliament and of the Council(6). Those sanctions could be imposed on the host entity established in the Member State concerned. (30) Provision for a single procedure leading to one combined title encompassing both residence and work permit (‘single permit’) should contribute to simplifying the rules currently applicable in Member States. (31) It should be possible to set up a simplified procedure for entities or groups of undertakings which have been recognised for that purpose. Recognition should be regularly assessed. (32) Once a Member State has decided to admit a third-country national fulfilling the criteria laid down in this Directive, that third-country national should receive an intra-corporate transferee permit allowing him or her to carry out, under certain conditions, his or her assignment in diverse entities belonging to the same transnational corporation, including entities located in other Member States. (33) Where a visa is required and the third-country national fulfils the criteria for being issued with an intra-corporate transferee permit, the Member State should grant the third-country national every facility to obtain the requisite visa and should ensure that the competent authorities effectively cooperate for that purpose. (34) Where the intra-corporate transferee permit is issued by a Member State not applying the Schengen acquis in full and the intra-corporate transferee, in the framework of intra-EU mobility, crosses an external border within the meaning of Regulation (EC) No 562/2006 of the European Parliament and of the Council(7), a Member State should be entitled to require evidence proving that the intra-corporate transferee is moving to its territory for the purpose of an intra-corporate transfer. Besides, in case of crossing of an external border within the meaning of Regulation (EC) No 562/2006, the Members States applying the Schengen acquis in full should consult the Schengen information system and should refuse entry or object to the mobility for persons for whom an alert for the purposes of refusing entry or stay, as referred to in Regulation (EC) No 1987/2006 of the European Parliament and of the Council(8), has been issued in that system. (35) Member States should be able to indicate additional information in paper format or store such information in electronic format, as referred to in Article 4 of (6) 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 L 168, 30.6.2009, p. 24). (7) Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ L 105, 13.4.2006, p. 1). (8) Regulation (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 L 381, 28.12.2006, p. 4).

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Council Regulation (EC) No 1030/2002(9) and point (a)16 of the Annex thereto, in order to provide more precise information on the employment activity during the intra-corporate transfer. The provision of this additional information should be optional for Member States and should not constitute an additional requirement that would compromise the single permit and the single application procedure. (36) This Directive should not prevent intra-corporate transferees from exercising specific activities at the sites of clients within the Member State where the host entity is established in accordance with the provisions applying in that Member State with regard to such activities. (37) This Directive does not affect the conditions of the provision of services in the framework of Article 56 TFEU. In particular, this Directive does not affect the terms and conditions of employment which, pursuant to Directive 96/71/EC, apply to workers posted by an undertaking established in a Member State to provide a service in the territory of another Member State. This Directive should not apply to thirdcountry nationals posted by undertakings established in a Member State in the framework of a provision of services in accordance with Directive 96/71/EC. Thirdcountry nationals holding an intra-corporate transferee permit cannot avail themselves of Directive 96/71/EC. This Directive should not give undertakings established in a third country any more favourable treatment than undertakings established in a Member State, in line with Article 1(4) of Directive 96/71/EC. (38) Adequate social security coverage for intra-corporate transferees, including, where relevant, benefits for their family members, is important for ensuring decent working and living conditions while staying in the Union. Therefore, equal treatment should be granted under national law in respect of those branches of social security listed in Article 3 of Regulation (EC) No 883/2004 of the European Parliament and of the Council(10). This Directive does not harmonise the social security legislation of Member States. It is limited to applying the principle of equal treatment in the field of social security to the persons falling within its scope. The right to equal treatment in the field of social security applies to third-country nationals who fulfil the objective and non-discriminatory conditions laid down by the law of the Member State where the work is carried out with regard to affiliation and entitlement to social security benefits. In many Member States, the right to family benefits is conditional upon a certain connection with that Member State since the benefits are designed to support a positive demographic development in order to secure the future work force in that Member State. Therefore, this Directive should not affect the right of a Member State to restrict, under certain conditions, equal treatment in respect of family benefits, since the intra-corporate transferee and the accompanying family members are staying temporarily in that Member State. Social security rights should be granted without prejudice to provisions of national law and/or bilateral agreements providing for the application of the social security legislation of the country of origin. However, bilateral agreements or national law on social security rights of intra-corporate transferees which are adopted after the entry into force of this Directive should not provide for less favourable treatment than the treatment granted to nationals of the Member State where the work is carried out. As a result of national law or such agreements, it may be, for example, in the interests of the intra-corporate transferees (9) 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. 1). (10) Regulation (EC) No 883/04 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ L 166, 30.4.2004, p. 1).

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to remain affiliated to the social security system of their country of origin if an interruption of their affiliation would adversely affect their rights or if their affiliation would result in their bearing the costs of double coverage. Member States should always retain the possibility to grant more favourable social security rights to intracorporate transferees. Nothing in this Directive should affect the right of survivors who derive rights from the intra-corporate transferee to receive survivor’s pensions when residing in a third country. (39) In the event of mobility between Member States, Regulation (EU) No 1231/ 2010 of the European Parliament and of the Council(11) should apply accordingly. This Directive should not confer more rights than those already provided for in existing Union law in the field of social security for third-country nationals who have cross-border interests between Member States. (40) In order to make the specific set of rules established by this Directive more attractive and to allow it to produce all the expected benefits for competitiveness of business in the Union, third-country national intra-corporate transferees should be granted favourable conditions for family reunification in the Member State which issued the intra-corporate transferee permit and in those Member States which allow the intra-corporate transferee to stay and work on their territory in accordance with the provisions of this Directive on long-term mobility. This right would indeed remove an important obstacle to potential intra-corporate transferees for accepting an assignment. In order to preserve family unity, family members should be able to join the intra-corporate transferee in another Member State, and their access to the labour market should be facilitated. (41) In order to facilitate the fast processing of applications, Member States should give preference to exchanging information and transmitting relevant documents electronically, unless technical difficulties occur or essential interests require otherwise. (42) The collection and transmission of files and data should be carried out in compliance with the relevant data protection and security rules. (43) This Directive should not apply to third-country nationals who apply to reside in a Member State as researchers in order to carry out a research project, as they fall within the scope of Council Directive 2005/71/EC(12). (44) Since the objectives of this Directive, namely a special admission procedure and the adoption of conditions of entry and residence for the purpose of intracorporate transfers of third-country nationals, cannot be sufficiently achieved by the Member States but can rather, by reason of the scale and effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives. (45) This Directive respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union, which itself builds upon the rights deriving from the Social Charters adopted by the Union and by the Council of Europe. (11) Regulation (EU) No 1231/2010 of the European Parliament and of the Council of 24 November 2010 extending Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 on nationals of third countries who are not already covered by these Regulations solely on the ground of their nationality (OJ L 344, 29.12.2010, p. 1). (12) Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting thirdcountry nationals for the purposes of scientific research (OJ L 289, 3.11.2005, p. 15).

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(46) In accordance with the Joint Political Declaration of Member States and the Commission on explanatory documents of 28 September 2011(13), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified. (47) In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Directive, and are not bound by or subject to its application. (48) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark annexed to the TEU and the TFEU, Denmark is not taking part in the adoption of this Directive, and is not bound by it or subject to its application, HAVE ADOPTED THIS DIRECTIVE:

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 I. General remarks and purpose of the Directive. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Drafting history of the Directive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 5

I. General remarks and purpose of the Directive Article 1 gives a general description of the Directive’s basic content, without, how- 1 ever, containing any details on the particular nature of its framework, the intracorporate transfer. It rather reflects the Directive’s legal basis, Article 79(2)(a) and (b) TFEU,1 and delimits the new legal act 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 5(1), that this Directive covers a very specific part of labour migration: it (13)

OJ C 369, 17.12.2011, p. 14. 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. 1

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merely concerns the temporary migration of managers, specialists and trainee employees of branches and subsidiaries of multinational corporations into and, where applicable, within the EU. 3 It has been found that, as a result of the globalisation of business, such migration has increased over the years, but that it is hampered by the complexity and diversity of the rules in the EU Member States. By setting up a harmonised legal framework, this Directive’s purpose is to facilitate intra-corporate transfers and thereby to eventually boost the competitiveness of the EU economy.2 4 It remains to be seen if these ambitious goals can be achieved. Due to its restricted scope, the overall impact of this Directive is likely to be rather limited.3 Besides, its effects might be further diminished by its considerable complexity which reduces the attractiveness of the rules and raises doubts whether the Directive will indeed be able to enhance the number of intra-corporate transfers significantly.4 However, the Directive might play an important role in the future development of intra-EU mobility for thirdcountry nationals due to its new and, despite its intricate character, comparatively flexible mobility scheme which is independent from the Schengen regime.5

II. Drafting history of the Directive This Directive forms part of a long-term process at EU level which is to lead to a comprehensive immigration policy.6 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.7 However, the proposal for this Directive was published only on 13 July 2010. 6 The proposal was negotiated extensively. 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 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. 7 During the nearly four years of negotiations, the most contested parts of the Directive 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 text almost doubled, resulting in some excessively long provisions (e. g. Article 22). 5

Article 2 Scope 1. 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 2

See Commission Proposal, COM(2010) 378, p. 2–3, as well as Recitals 3–7 of the Preamble. In the summary of the impact assessment accompanying the proposal, the Commission estimated the number of ICTs to be roughly 16 500 a year throughout the EU, see Commission Document, SEC(2010) 885, p. 7. 4 See as to the mobility scheme Peers/Guild/Tomkin, EU Immigration and Asylum Law (Martinus Nijhoff, 2012), p. 108. 5 See also the somewhat overenthusiastic assessment (‘milestone’, ‘quantum leap’) by Klaus, Zeitschrift fu¨r Ausla¨nderrecht (2015), p. 1. 6 See for further details Commission Proposal, COM(2010) 378, p. 2, and above Thym, Part C I, MN 1–4. 7 See Commission Communication, COM(2005) 669, p. 4–8. 3

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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 free movement equivalent 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 I. II. III. IV.

General remarks and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of the Directive (Article 2(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exclusion from the scope of the Directive (Article 2(2)) . . . . . . . . . . . . . . . . . . . Other residence permits for the purpose of employment (Article 2(3)). .

1 3 5 9

I. General remarks and drafting history The description of the Directive’s scope in Article 2 is not precise. It can be under- 1 stood 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. Furthermore, Article 2 is not explicit as to the question if Member States may 2 provide for additional national schemes for ICTs. It is argued here that indeed they may: Despite the drafting history of Article 2(3),8 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 territory 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 8

See Council doc. 6667/13 of 22 February 2013, p. 38.

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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)) 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 territory of the Member States’ (Article 1(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 territory 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 Directive (see Recitals 47 and 48) are not covered by this Directive. However desirable the opposite might be, any teleological interpretation cannot overcome the unambiguous wording.9 3

III. Exclusion from the scope of the Directive (Article 2(2)) Researchers (Article 2(2)(a), see Recital 43) and posted workers (Article 2(2)(c), see Recital 37) 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 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 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. 7 The wording of the exclusion of self-employed workers as well as the Parliament’s justification for proposing it10 suggest 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. 8 In order to prevent employment or temporary work agencies from abusing the 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 supervision and direction of another undertaking (Article 2(2)(e)).11 However, third-country nationals that work within such agencies as their own managers, specialists and trainee employees are not excluded.12 5

9

See however Klaus, Zeitschrift fu¨r Ausla¨nderrecht (2015), p. 1, 3 fn. 26. See European Parliament, Orientation vote result of the LIBE Committee, RR\2010_0209_CODEN.doc, 14 February 2012, p. 21. 11 See Council doc. 6667/13 of 22 February 2013, p. 37. 12 See Klaus, Zeitschrift fu ¨ r Ausla¨nderrecht (2015), p. 1, 4 fn. 37. 10

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Art. 3

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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.13 Furthermore, the Directive does not interfere with the Member States’ competence to 10 regulate short-term intra-corporate transfers of up to 90 days, which is only subject to the EU’s international trade commitments.14 Theoretically, Member States also remain free to allow in-country applications for ICTs in their national law,15 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) ‘intra-corporate transfer’ means the temporary secondment for occupational or training purposes of a third-country 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; (c) ‘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; (d) ‘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; (e) ‘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; (f) ‘specialist’ means a person working within the group of undertakings possessing specialised knowledge essential to the host entity’s areas of activity, techniques or 13

Such as unqualified employees, see Klaus, Zeitschrift fu¨r Ausla¨nderrecht (2015), p. 1, 4. Peers/Guild/Tomkin, EU Immigration and Asylum Law (Martinus Nijhoff, 2012), p. 96. 15 See Peers/Guild/Tomkin, EU Immigration and Asylum Law (Martinus Nijhoff, 2012), p. 96. 14

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(g)

(h) (i)

(j)

(k)

(l)

(m) (n)

(o)

Immigration

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/EC(14); ‘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 third-country 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, holds 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 undertaking’s administrative, management or supervisory body; or the undertakings are managed on a unified basis by the parent undertaking; ‘first Member State’ means the Member State which first issues a third-country national an intra-corporate transferee permit; ‘second Member State’ means any Member State in which the intra-corporate transferee intends to exercise or exercises the right of mobility within the meaning of this Directive, other than the first Member State; ‘regulated profession’ means a regulated profession as defined in point (a) of Article 3(1) of Directive 2005/36/EC. Content I. General remarks and drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. ‘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(l)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 4 6 7 9 11 12 13 14

(14) 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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Art. 3

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I. General remarks and drafting history Article 3 defines fifteen key terms used in this Directive. It aims at ensuring a 1 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 discussions during the negotiations. This concerned in particular the definitions of the ‘intra-corporate transfer’, the ‘manager’, the ‘specialist’ and the ‘trainee employee’.16

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.17

1. ‘Intra-corporate transfer’ and ‘intra-corporate transferee’ (Article 3(b) and (c)) The key definition of the ‘intra-corporate transfer’ builds on specific EU-25 4 commitments under the GATS and bilateral trade agreements.18 It contains the main three characteristics of this specific type of migration: (1) the link between the migrating third-country national and an undertaking which is established outside the Member States,19 (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. While the subject of an intra-corporate transfer, i. e. the ‘intra-corporate transferee’ 5 or the ‘ICT’, may also be seconded to further host entities in the first and in second Member States (see Articles 5(1)(c)(i) and 17(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.20

2. ‘Host entity’ (Article 3(d)) Despite the definition’s wording (‘the entity to which the intra-corporate transferee is 6 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.21

16

For a comparison of the different positions, see Council doc. 6667/13 of 22 February 2013, p. 39–42. 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. 18 See Commission Proposal, COM(2010) 378, p. 9. 19 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 Peers/Guild/Tomkin, EU Immigration and Asylum Law (Martinus Nijhoff, 2012), p. 100. 20 See Klaus, Zeitschrift fu ¨ r Ausla¨nderrecht (2015), p. 1, 3. 21 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. 17

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3. ‘Manager’ (Article 3(e)) Although single words differ, this definition corresponds with the respective definition in the EU commitments schedule under the GATS.22 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 managers23 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

4. ‘Specialist’ (Article 3(f)) The Parliament suggested to align the definition with the terminology of the Blue Card Directive.24 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 formally stated on the occasion of the Directive’s adoption by the Council.25 10 The fact that the third-country national has to possess ‘specialised knowledge’ which 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.26 9

5. ‘Trainee employee’ (Article 3(g)) 11

Unlike the previous one, this is a rather clear-cut definition, covering only remunerated 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.27 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)) 12

The suggestion by the Council to delete Article 3(i) in view of the more detailed ‘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. 22 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, and Recital 13. 23 See European Parliament, Orientation vote result of the LIBE Committee, RR\2010_0209_CODEN.doc, 14 February 2012, p. 23. 24 See European Parliament, Orientation vote result of the LIBE Committee, RR\2010_0209_CODEN.doc, 14 February 2012, p. 23–25. 25 See Council doc. 9346/14 ADD 1 of 5 May 2014, p. 2. 26 See Bayreuther, Zeitschrift fu ¨ r europa¨isches Sozial- und Arbeitsrecht (2012), p. 405–406. 27 This condition was deleted during the negotiations, compare Commission Proposal, COM(2010) 378, p. 19.

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7. ‘Permit for long-term mobility’ (Article 3(j)) If Member States opt for the application procedure for long-term mobility (Arti- 13 cle 22(2) 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(l)) 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.

Article 4 More favourable provisions 1. 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. Article 4 determines where derogations from this Directive are possible by means of more favourable provisions. No significant changes were made during the negotiations.28 In particular, the provisions listed in Article 4(2) remained the same, although it was discussed to add provisions such as Article 5(1)(b). Article 4(1) refers to more favourable provisions contained in existing as well as future EU law, bilateral and multilateral agreements. In particular, the interaction with the GATS rules is not very clear and will have to be solved in practice on a case-by-case basis.29 In Article 4(2), Member States are given the limited possibility to provide for more favourable provisions in respect of Articles 3(h), 15, 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). 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 understanding of ‘family members’ beyond the one of Article 4(1) 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 28

Compare Commission Proposal, COM(2010) 378, p. 20. See Peers/Guild/Tomkin, EU Immigration and Asylum Law (Martinus Nijhoff, 2012), p. 106–107, and Klaus, Zeitschrift fu¨r Ausla¨nderrecht (2015), p. 1, 2 note 9. 29

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first Member State may not be allowed to accompany the ICT during his or her longterm 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.

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 to 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 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. 990

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2. Member States may require the applicant to present the documents listed in points (a), (c), (d), (e) and (g) of paragraph 1 in an official language of the Member State concerned. 3. Member States may require the applicant to provide, at 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 intra-corporate 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 area 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 basis of the documentation provided pursuant 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 to the evidence required under paragraph 1, any third-country national who applies to be admitted as a trainee employee may be required to 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 train 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 I. General remarks and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Mandatory criteria for admission (Article 5(1), (4), (7) and (8)). . . . . . . . . . 3 1. Same undertaking 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(1)(c)). . . 6 4. Professional qualifications and experience (Article 5(1)(d)). . . . . . . . . . . . . 7 5. Terms and conditions of employment (Article 5(4)) . . . . . . . . . . . . . . . . . . . . . 8 6. Modifications affecting the criteria for admission (Article 5(7)). . . . . . . . 10 III. Facultative criteria for admission (Article 5(2), (3), (5) and (6)) . . . . . . . . . . 11

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Immigration

I. General remarks and drafting history Article 5 lays down numerous, mostly mandatory criteria for admission. In case that they are not complied with, the application30 has to be rejected (Article 7(1)(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.31 2 Given the importance of the admission criteria, it is not surprising that the details of Article 5 have been discussed intensively. This concerned in particular Article 5(1)(b) and (4). 1

II. Mandatory criteria for admission (Article 5(1), (4), (7) and (8)) 3

The mandatory requirements to comply, where applicable, with regulated profession rules (Article 5(1)(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)(f)), to have or, if provided for by national law, to have applied for sickness insurance (Article 5(1)(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.32

1. Same undertaking or group of undertakings (Article 5(1)(a)) 4

This requirement is an elementary criterion to ensure that the transfer to the EU is of an intra-corporate nature. Given the potential complexity of the matter, in particular where a group of undertakings (Article 3 l) is involved, the evidence has to show in a comprehensible and verifiable way how the different entities are linked, in order to enable the authorities of the Member State to properly assess this criterion.

2. Minimum duration of current employment within the same undertaking or group of undertakings (Article 5(1)(b)) 5

This requirement is vital to ensure that the skills of the ICT are specific to the host entity (see Recital 16) and that the alleged intra-corporate transfer is not, in fact, a disguised recruitment of a third-country national. Even if the wording does not require the former employment and the one during the transfer to be in the same position, in such cases the Member States should take a closer look (see also Article 5(1)(d)). The evidence might be provided with the working contract referred to in Article 5(1)(c).

3. Work contract and, if necessary, assignment letter (Article 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 third30

The Member States have to determine by whom applications are to be submitted (Article 11(1)). See ECJ, Ben Alaya, C-491/13, EU:C:2014:2187, para 33. It is argued here that the Directive leaves the Member States a certain discretion to reject the admission on further grounds, see below Article 7 MN 2. 32 See in particular Article 5(1)(b), (d), (e) and (f) Blue Card Directive 2009/50/EC; for further annotations regarding those requirements see above Hailbronner/Herzog-Schmidt, Blue Card Directive 2009/50/EC, Article 5, MN 4, 6–8. 31

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Art. 5

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country national’s work contract or an additional assignment letter, how long and where the transfer is going to take place (Article 5(1)(c)(i)),33 which position the thirdcountry national will hold (Article 5(1)(c)(ii)),34 which remuneration and other terms and conditions the employment involves (Article 5(1)(c)(iii))35 and that the 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)).36

4. Professional qualifications and experience (Article 5(1)(d)) As this Directive targets (highly) qualified migration, it is important to establish that 7 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(1)(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 8 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.37 With regard to the remuneration granted to the ICT during the entire transfer, 9 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).

6. Modifications affecting the criteria for admission (Article 5(7)) It is vital for an accurate application procedure that any modification during the 10 procedure affecting the criteria for admission are notified without undue delay. In case 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.

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 33 This also includes details on mobility to other Member States, as far as it is known already, see Article 21(2)(a). 34 See in this respect the definitions in Article 3(e), (f) and (g) as well as Recital 13. 35 See Article 5(4). The information should comprise at least the aspects listed in Article 3 Posted Workers Directive 96/71/EC, see Commission Proposal, COM(2010) 378, p. 9. 36 This requirement is due to the fact that the scheme focuses specifically on temporary migration, see Commission Proposal, COM(2010) 378, p. 10. 37 See Bayreuther, Zeitschrift fu ¨ r europa¨isches Sozial- und Arbeitsrecht (2012), p. 405, 407.

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that he or she will benefit from genuine training and not be used as a normal worker (see 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 admission of third-country nationals in accordance with Article 79(5) TFEU. On that basis, an application for an intra-corporate transferee permit may either be considered inadmissible or be rejected. 1

2

3

4

5

On the basis of Article 6, which fully reflects Article 79(5) TFEU, Member States may 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 only38 or even reduce the numbers to zero.39 Member States may also take other measures in order to protect their national labour 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 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.40 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.41 However, all this cannot take away from the Member States a right (of such fundamental importance) which is guaranteed to them by primary law. That said, it is not likely that the Member States will resort to this instrument very much: on the one hand, the Member States covered by the EU’s commitments under the GATS 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 1 MN 2, 4) as well as the qualification and specialisation of the third-country nationals in question. 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. 38

See Recital 17 of the Commission Proposal, COM(2010) 378, p. 15. See the position of the European Parliament, Orientation vote result of the LIBE Committee, RR\2010_0209_CODEN.doc, 14 February 2012, p. 32–33. 40 See Thym in Grabitz/Hilf/Nettesheim, Das Recht der Europa ¨ ischen Union (C.H. Beck), Update: May 2014, Article 79 TFEU MN 45. 41 See Commission Proposal, COM(2010) 378, p. 10. 39

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Art. 7

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Article 7 Grounds for rejection 1. Member States shall reject an application for an intra-corporate transferee 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 transferees; (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, taxation, 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; (c) where the intent or effect of the temporary presence of the intra-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 1, any decision to reject an application shall take account of the specific circumstances of the case and respect the principle of proportionality. Content I. II. III. IV.

General remarks and drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Mandatory grounds for rejection (Article 7(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Discretionary ground for rejection (Article 7(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Facultative grounds for rejection (Article 7(3) and (4)) . . . . . . . . . . . . . . . . . . . . 10

I. General remarks and drafting history Together with Article 6, the grounds for rejection contained in Article 7 represent a 1 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,42 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 42

ECJ, Ben Alaya, C-491/13, EU:C:2014:2187, see in particular paras 23–32.

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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.43 3 Due to the importance of the grounds for rejection, it is not surprising that they have 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.44

II. Mandatory grounds for rejection (Article 7(1)) The reference to the (mandatory and facultative) admission criteria of Article 5 in Article 7(1)(a) proves their pivotal nature (see also Article 15(2)). 5 Article 7(1)(b) ensures that the acquisition of the evidence supporting the application as well as the evidence itself is correct.45 6 Article 7(1)(c) also aims at fighting possible abuses of the provisions of this Directive (see Recital 24). Important criteria to assess and prove an abuse are the time that the host entity already exists, 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(1)(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(1). Such an application would have to be rejected, but a new application could be submitted, with an adapted duration of the transfer. 4

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.46 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 term ‘illegal employment’ is to be understood wider than the definition of Article 2(d) Employer Sanctions Directive 2009/52/EC.47 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

43 See also Peers/Guild/Tomkin, EU Immigration and Asylum Law (Martinus Nijhoff, 2012), p. 98, as well as Klaus, Zeitschrift fu¨r Ausla¨nderrecht (2015), p. 1, 10. 44 See for an overview Council doc. 6667/13 of 22 February 2013, p. 58–60. 45 See for further details above Hailbronner/Herzog-Schmidt, Blue Card Directive 2009/50/EC, Article 8, MN 2. 46 See, in contrast, Peers/Guild/Tomkin, EU Immigration and Asylum Law (Martinus Nijhoff, 2012), p. 98. 47 See however above Hailbronner/Herzog-Schmidt, Blue Card Directive 2009/50/EC, Article 8, MN 7.

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Art. 8

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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 10 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)). The same applies to Article 7(3)(c): the more the interests involved in a present or 11 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 that multinational companies could misuse the Directive by transferring ‘strike-breakers’ at short notice to an undertaking concerned.48 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 1. 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 employment. 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: 48

See Bayreuther, Zeitschrift fu¨r europa¨isches Sozial- und Arbeitsrecht (2012), p. 405, 409–410.

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(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 working 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 1 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. Content I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Mandatory grounds for withdrawal and non-renewal (Article 8(1) and (3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Discretionary ground for withdrawal and non-renewal (Article 8(2) and (4)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Facultative grounds for withdrawal and non-renewal (Article 8(5)) . . . . .

1 2 7 8

I. General remarks 1

Article 8 contains a non-exhaustive list49 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 8(1)(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(1)(a). Article 8(1)(b) and (3)(b) are important measures to sanction misuse of this Directive. It may not be applied as long 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(1)(c) and (3)(c) are identical with Article 7(1)(c) (see above Article 7 MN 6). 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(1) may exist, no corresponding ground for withdrawal in Article 8(1) was needed. 49 See, above Article 7 MN 2 and, arguing for the contrary, Peers/Guild/Tomkin, EU Immigration and Asylum Law (Martinus Nijhoff, 2012), p. 98.

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Art. 9

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III. Discretionary ground for withdrawal and non-renewal (Article 8(2) and (4)) The ground for withdrawal and non-renewal provided for in Article 8(2) and (4) is 7 identical to the one of Article 7(2) (see above Article 7 MN 8–9).

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(1)(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 10). 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 22.50 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 1. 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 1. 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 1 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, stay and mobility are not complied with. If they decide to do so, however, those sanctions must be effective, proportionate and dissuasive. Articles 11(9) and 23(7) are lex specialis to these provisions. 50 Member States may also provide for possible sanctions against the host entity according to Articles 23(7) and 9(1) and (2).

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Article 9(3) obliges Member States to at least monitor, assess and, where appropriate, inspect whether the transposed provisions of the Directive are abused or infringed. 4 In addition, Article 9(3) functions as a general clause which enables the Member 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, 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. 3

CHAPTER III PROCEDURE AND PERMIT Article 10 Access to information 1. Member States shall make easily accessible 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 his or her family members. 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. The information requirements for the Member States were extended considerably during the negotiation process.51 With a view to the complexity of the intra-EU mobility scheme and the multiple options for transpositions contained there in, it was particularly important that the obligation to inform about the respective procedures was added.52 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. 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). 1

Article 11 Applications for an intra-corporate transferee permit or a permit for long-term mobility 1. 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. 51 52

Compare Article 9 of the Commission Proposal, COM(2010) 378, p. 23. See Klaus, Zeitschrift fu¨r Ausla¨nderrecht (2015), p. 1, 7.

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Art. 11

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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 intracorporate 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 procedure (Article 11(1) to (5)) . . . . . . . . . . . . . . . . . . . . . . . . II. Facultative simplified procedures (Article 11(6) to (9)). . . . . . . . . . . . . . . . . . . . .

1 4

I. General application procedure (Article 11(1) to (5)) Concerning the procedure generally applicable to applications for permits under this 1 Directive, this article determines by whom (Article 11(1)), from where (Article 11(2))53 and to which authority (Article 11(4)) of which Member State (Article 11(3)) such applications have to be submitted. In particular, Article 11(3) is of crucial importance to prevent circumvention of a 2 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 ICT permit 53 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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Part C XII Art. 12

Immigration

has been, issued by the first Member State (see Article 21 MN 7). Member States have to reject an application for an ICT 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 ICT 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)) 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 purpose. Apart from the specifications in Article 11(6), (8) and (9) (see also Recital 31), the Member States have a wide discretion how to design the recognition procedures. 5 The fact that Article 11(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. 4

Article 12 Duration of an intra-corporate transfer 1. The maximum duration of the intra-corporate transfer shall be three years for managers and specialists and one year for trainee 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. 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 paragraph 1 and another application concerning the same third-country national for the purposes of this Directive in the same Member State. 1

With a maximum duration54 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 GATS, intra-corporate transfers are designed as temporary migration only. Due to the temporary nature of the stay, the Long-Term Residents Directive 2003/ 109/EC does not apply to ICTs.55 54 See also Recital 17 (cumulative calculation in case of consecutively issued ICT permits) and Article 7(1)(d) (compulsory rejection of applications that do not respect the maximum duration). 55 See Articles 3(2)(e) and 4(2) Long-Term Residents Directive 2003/109/EC.

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Art. 13

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However, the temporary nature is not absolute: On the one hand, ICTs may stay in 2 (Article 12(1)) 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.56 In general, ICTs should have good chances to qualify for a Blue Card under Directive 2009/50/EC. On the other hand, ICTs are not prevented from immediately applying for an intra-corporate transfer in another Member State. 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.57 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 ICT.

Article 13 Intra-corporate transferee permit 1. 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 concerned, whichever is shorter, and may be extended to a maximum of three years for managers and specialists 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)16 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 (Article 13(1) and (5)) . . . II. Specifications concerning the ICT permit (Article 13(2) to (4) and (6)). III. Facilitation to obtain requisite visa (Article 13(7)) . . . . . . . . . . . . . . . . . . . . . . . . . .

56 57

1 3 4

Peers/Guild/Tomkin, EU Immigration and Asylum Law (Martinus Nijhoff, 2012), p. 100. Compare the original Article 16(3) of the Commission Proposal, COM(2010) 378, p. 28.

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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 ICTs. 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). 1

II. Specifications concerning the ICT permit (Article 13(2) to (4) and (6)) 3

Furthermore, Article 13 contains detailed specifications on the ICT 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 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 8(5)(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 (any more) the case, 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). 2 As the obligation to notify modifications is important for fighting misuse of the Directive, it is to be interpreted rather extensively in case of doubt. 3 Furthermore, given the provision’s significance, it would seem only reasonable if 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. 1

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Art. 15

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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 1 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. 6. Where the validity of the intra-corporate transferee permit expires during the procedure for renewal, Member States shall 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. Article 15 provides for the usual58 procedural specifications which mainly serve as 1 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 Arti- 2 cle 5(1)(f)) and the wording of Article 15 refers to the latter only, the procedural safeguards apply also to visa that equal ICT permits with respect to its requirements (see Articles 3(i) and 13).59 Changes during the negotiations concerned in particular a considerable prolongation 3 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.60 Apart from the latter, however, in 58 See e. g. Article 11 Blue Card Directive 2009/50/EC and Article 18 Seasonal Workers Directive 2014/36/EU. 59 See Klaus, Zeitschrift fu ¨ r Ausla¨nderrecht (2015), p. 1, 5. 60 See for an overview Council doc. 6667/13 of 22 February 2013, p. 75–80.

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Part C XII Art. 17

Immigration

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. 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 application. However, Article 16 expressly states that the fees may not exceed an ultimate absolute or relative 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.61 1

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 first Member State; (b) free access to the entire territory of the first 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 first Member State. The rights referred to in points (a) to (c) of the first 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). 2 The ICT’s right to work (Article 17(c)) is limited, formally, by the respective 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 1

61 See the (too extensive) judgment of the ECJ in Commission 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.

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Art. 18

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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 (see Recital 36).

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. Intra-corporate transferees shall enjoy equal treatment with nationals of the Member State where the work is carried out as regards: (a) 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 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 bilateral 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 States may decide that point (c) of paragraph 2 with regard to family benefits shall not apply to intracorporate 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. Lo¨rges

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Part C XII Art. 18

Immigration Content

I. General remarks and drafting history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 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 State to withdraw or to refuse to renew the ICT permit (Article 18(4)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

I. General remarks and drafting history Article 18 determines in which areas and at what levels ICTs have a right to equal treatment. 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. 2 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). 3 Article 18 establishes individual rights for ICTs 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.62 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. 4 The provision was the subject of intensive discussions during the negotiations. 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).63 1

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 terms of Directive 96/71/EC,64 Article 18(1) guarantees them the right to terms and conditions of employment like they apply to posted workers according to Article 3 Posted Workers Directive 96/71/EC. 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. Since Article 18(1) does not contain a corresponding individual right, however, Member States’ transposition may provide for public enforcement measures only. 5

62

See Bayreuther, Zeitschrift fu¨r europa¨isches Sozial- und Arbeitsrecht (2012), p. 405, 406. See for an overview Council doc. 6667/13 of 22 February 2013, p. 82, as well as Peers/Guild/Tomkin, EU Immigration and Asylum Law (Martinus Nijhoff, 2012), p. 108–110 (arguing for the Parliament’s position). 64 Compare in particular Article 1(3)(b) Posted Workers Directive 96/71/EC; for the delimitation of both Directives, see Recital 37. 63

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Art. 19

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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,65 the provisions regarding the payment of statutory pensions66 and the access to goods and services67 were adapted specifically for this Directive. The right to have access to social security was limited during the negotiations, against the position of the Parliament.68 Instead of the provisions in national law regarding the branches of social security defined in Article 3 of 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); but see also Recital 38). Furthermore, Article 18(3) allows Member States to grant equal treatment with regard to family benefits only to ICTs that have been admitted for more than nine months. The Council enforced this possible limitation 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 third-country 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. In case of intra-EU mobility, Regulation (EU) No 1231/2010 applies accordingly, as far as the ICT is not covered by the national law of the country of origin on the basis of bilateral agreements (see also Recital 39).

7

8

9

10

IV. Without prejudice State to withdraw or to refuse to renew the ICT 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.69

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 65 See e. g. Article 14(1)(b) and (d) Blue Card Directive 2009/50/EC or Article 12(1)(b) and (d) Single Permit Directive 2011/98/EU. 66 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. 67 Procedures for obtaining housing and any services afforded by public employment offices were excluded from this right. 68 See for an overview Council doc. 6667/13 of 22 February 2013, p. 83–84. 69 See also Article 14(3) Blue Card Directive 2009/50/EC and, as to that provision’s background, Kuczynski/Solka, ‘Die Hochqualifiziertenrichtlinie’, Zeitschrift fu¨r Ausla¨nderrecht (2009), p. 219, 226– 227, as well as ECJ, Gattoussi, C-97/05, EU:C:2006:780, paras 38–43.

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Part C XII Art. 19

Immigration

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 subparagraph 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 duration 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 permit 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 intracorporate 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)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 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 19(1)), modified by the derogations laid down in Article 19(2) to (6). The latter create a set of more favourable conditions for ICTs’ family reunification that removes important obstacles70 and significantly enhances the attractiveness of the rules governing intra-corporate transfers (see Recital 40). 70 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, see Peers/Guild/ Tomkin, EU Immigration and Asylum Law (Martinus Nijhoff, 2012), p. 101.

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Art. 20

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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.71 Article 19(4), however, provides for an even more accelerated72 application proce- 5 dure 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.73 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 hold a valid intra-corporate transferee permit issued by the first 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. Article 20 is the basic provision of the Directive’s intra-EU mobility scheme. 1 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,74 since it 2 enables ICTs to move around and work in the EU Member States autonomously from 71 See for details on the equivalent derogations above Hailbronner/Herzog-Schmidt, Blue Card Directive 2009/50/EC, Article 15, MN 2–3 and 5. 72 The maximum processing time of 90 days is considerably shorter than the nine months provided for in Article 5(4) Family Reunification Directive 2003/86/EC as well as the six months provided for in Article 15(4) Blue Card Directive 2009/50/EC. 73 See above Hailbronner/Klarmann, Family Reunification Directive 2003/86/EC, Article 14, MN 6. 74 See rather too exuberant Klaus, Zeitschrift fu ¨ r Ausla¨nderrecht (2015), p. 1, 7.

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Part C XII Art. 21

Immigration

the well-known and well-proven Schengen acquis,75 mainly on the basis of the ICT permit issued by the first Member State. At first glance, this might appear appealing: third-country nationals with an ICT 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. 3 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(1)). 4 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 ICT 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)). 5 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.76 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 1. Third-country nationals who hold a valid intra-corporate transferee permit issued by the first 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 to the conditions laid down in this Article. 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) at the time of the application in the first Member State, where the mobility to 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. 75 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 1 of 5 May 2014, p. 1. 76 See e. g. Peers, EJML 2008 (10), p. 219, 244–245.

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Art. 21

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3. The second Member State may require the notification to include the transmission of 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 (f) of Article 5(1); and (e) where not specified in any of the preceding documents, the planned duration and dates of 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 intra-corporate transferee to the second Member State 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) of 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 intracorporate transferee permit. 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 1 of 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 State 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 part of the intra-corporate transfer. Where the mobility has 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, subject to the maximum duration provided for in paragraph 1 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. Lo¨rges

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Part C XII Art. 21

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I. General remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Basic principle (Article 21(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. The optional notification procedure (Article 21(2) to (7)) . . . . . . . . . . . . . . . .

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I. General remarks 1

Article 21 offers to the Member States two main alternatives for designing shortterm 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(1)), or they might opt for a minimum of control by introducing the rather complex notification procedure according to Article 21(2) to (7).

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)) 3

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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 Member 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). 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). 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 ICT 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. 1014

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Art. 22

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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 8 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 1. In relation to third-country nationals who hold a valid intra-corporate transferee 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; (iv) a valid travel document, as provided for in point (f) 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(1). 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 intracorporate 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; Lo¨rges

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Part C XII Art. 22

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(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)16 of the Annex thereto. 5. Renewal of a permit for long-term mobility is without prejudice to Article 11(3). 6. The second Member State shall inform the competent authorities in the first 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 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)) 1

As for short-term mobility, the Directive provides for different (even more diverging) possibilities also for ICTs’ mobility of more than 90 days to the same (second) Member State (long-term mobility):

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Art. 22

ICT Directive 2014/66/EU

Part C XII

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(1)(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(1)(a) and 21(2) to (7), since the reference in Article 22(1)(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 an extra application procedure according to Articles 22(2) to (7) (see Article 22(1)(b)).

II. The optional application procedure (Article 22(2) to (7)) The documents and information which the Member States may require the applicant77 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 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, mobile ICTs may start working in the second Member State before the decision on the application has been taken, immediately after having submitted the application or, if 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 ICT 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 numerous 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).

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Part C XII Art. 23

Immigration

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 as 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. 5. In the cases referred to in paragraph 4, the first Member State shall, upon request of the second Member State, allow re-entry of the intra-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 first Member State has expired or has been withdrawn during the period of mobility within the second Member State. 6. Where the holder of an intra-corporate transferee permit crosses 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;

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Art. 24

ICT Directive 2014/66/EU

Part C XII

(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 fulfilled in case Article 21(5) or point (d) of Article 22(2) applies. Content I. Safeguards (Article 23(1) 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 1 independent from the Schengen acquis. 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 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.

II. Sanctions (Article 23(7)) Article 23(7) lists the situations in which sanctions may be imposed against the host 4 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 Lo¨rges

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Part C XII Art. 27

Immigration

the first time, and, where applicable, the notifications received pursuant 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 Council(15).

Article 25 Reporting Every three years, and for the first time by 29 November 2019, the Commission 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. 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 States 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 to 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.

(15) 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 311/76 on the compilation of statistics on foreign workers (OJ L 199, 31.7.2007, p. 23).

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Art. 29

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Part C XII

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. Articles 24 to 29 contain the final provisions that are meant to ensure the proper functioning and transposition of the Directive. In order to enable the Commission to thoroughly monitor the Directive’s functioning and assess the need for amendments, Member States have to communicate annually certain statistics (see Article 24). The Commission is obliged to report by 29 November 2019, and every three years thereafter, on the application of the Directive (see Article 25). The obligation to particularly focus on the autonomous intra-EU mobility scheme was introduced at a late stage of the negotiations in response to concerns about the practicability and possible misuse of the scheme. For the transnational matters of this Directive, Article 26 obliges the Member States to appoint national contact points. These contact points play a central role for the functioning of the intra-EU mobility scheme as they are responsible for receiving and transmitting all information needed for its implementation (see Articles 21, 22 and 23). The Directive has to be transposed by the Member States (except for the United Kingdom, Ireland and Denmark, see Article 29 and Recitals 47 and 48) two and a half years after it entered into force (on 28 May 2014, see Article 28), i. e. by 29 November 2016. The Member States are obliged to communicate to the Commission the implementing measures (see Article 27 and, concerning the correlation between those measures and the provisions of the Directive, Recital 46).

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PART D ASYLUM I. Legal Framework for EU Asylum Policy Selected Bibliography: Battjes, European Asylum Law and International Law (Martinus Nijhoff, 2006); Battjes, ‘Subsidiary Protection and Other Alternative Forms of Protection’, in: Chetail/Baulez (eds), Research Handbook on International Law and Migration (Elgar, 2014), p. 541–561; Boeles/den Heijer/ Lodder/Wouters, European Migration Law, 2nd edn (Intersentia, 2014); Boccardi, Europe and Refugees (Kluwer, 2002); Costello, ‘Administrative Governance and the Europeanisation of Asylum and Immigration Policy’, in: Hofmann/Tu¨rk (eds), EU Administrative Governance (Elgar, 2006), p. 287–340; Costello, The Human Rights of Migrants and Refugees in European Law (OUP, 2015); Drywood, ‘Who’s in and Who’s Out? The Court’s Emerging Case Law on the Definition of a Refugee’, CML Rev. 51 (2014), p. 1093–1124; Fro¨hlich, Das Asylrecht im Rahmen des Unionsrechts (Mohr Siebeck, 2011); Goodwin-Gill/ McAdam, The Refugee in International Law, 3rd edn (OUP, 2007); Goudappel/Raulus (eds), The Future of Asylum in the European Union (Springer, 2011); Hailbronner, Immigration and Asylum Law and Policy of the European Union (Kluwer, 2000); Hailbronner, ‘Asylum Law in the Context of a European Migration Policy’, in: Walker (ed), Europe’s Area of Freedom, Security and Justice (OUP, 2004), p. 41–88; Hathaway, The Rights of Refugees under International Law (CUP, 2005); Muzak, ‘Articles 77–80 TFEU’, in: Mayer/ Sto¨ger (eds), Kommentar zu EUV und AEUV (Maunz, looseleaf: 141th edn, 2012); Rossi, ‘Articles 77–80 TFEU’, in: Calliess/Ruffert (eds), EUV/AEUV-Kommentar, 4th edn (C.H. Beck, 2011); Schieber, Komplementa¨rer Schutz (Nomos, 2013); Storey, ‘Briefing Note for Participants’, IJRL 25 (2013), p. 328–348; Peers, EU Justice and Home Affairs Law, 3rd edn (OUP, 2011); Stern/Tohidipur, ‘Migration von Drittstaatsangeho¨rigen’, in: von Arnauld (ed), Enzyklopa¨die Europarecht, Vol. X (Nomos, 2014), § 14; Teitgen-Colly, ‘The European Union and Asylum’, CML Rev. 43 (2006), p. 1503–1566; ter Steeg, Das Einwanderungskonzept der EU (Nomos, 2006); Weiß, ‘Articles 77–80 TFEU’, in: Streinz (ed): EUV/ AEUV. Kommentar, 2nd edn (C.H. Beck, 2011).

Content I. General Remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Evolution of EU Asylum Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Territorial Scope (Member State Participation) . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Treaty Guidance under Article 78 TFEU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Compliance with International Law (Article 78(1) TFEU) . . . . . . . . . . . . . . 2. Scope of EU Competences (Article 78(2) TFEU) . . . . . . . . . . . . . . . . . . . . . . . . . a) Uniform Status of Asylum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Subsidiary Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Temporary Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) Procedural Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e) Determining which Member State is Responsible . . . . . . . . . . . . . . . . . . . . . f) Reception Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . g) Cooperation with Third States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Emergency Situations (Article 78(3) TFEU) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Overarching Principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Mixed Migration Flows and Legal Status Change . . . . . . . . . . . . . . . . . . . . . . . . 2. Solidarity (Article 80 TFEU) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. International Law and Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Geneva Convention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. European Convention on Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Other International Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Charter of Fundamental Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. General Remarks 1. Evolution of EU Asylum Policy Cooperation on asylum began as a so-called flanking measure which compensated states for their loss of control options following the abolition of border controls within the Schengen area (see Thym, Legal Framework for Entry and Border Controls, MN 1– 3). The Schengen Implementing Convention of 1990 contained a first set of rules on the responsibility for processing applications for asylum.1 In parallel, all Member States, including those who did not join the Schengen area initially, agreed upon the Dublin Convention of 1990 concerning asylum jurisdiction,2 which eventually entered into force in September 1997 after a drawn-out ratification process.3 The arrangements pursued a double objective. Firstly, they were meant to prevent ‘forum shopping’4, a term used to describe situations where asylum seekers leave for countries with generous reception conditions or recognition quota. Secondly, the coordination of asylum jurisdiction was destined to counter the phenomenon of ‘refugees in orbit’ where applicants are ‘referred successively from one Member State to another without any of these States acknowledging itself to be competent to examine the application’5 as a result of domestic safe third country rules. In practice, the Dublin Convention did not function particularly well: 95 % of all asylum applications were processed outside the Dublin system in the 1998/1999 period, while actual transfers took place in no more than 1.7 % of cases.6 2 While the original Schengen and Dublin Conventions moved towards the demarcation of asylum jurisdiction without a substantive harmonisation of rules on asylum procedure, reception conditions or recognition criteria, the Treaty of Maastricht declared the whole field of asylum policy an area of common interest that was to be realised through intergovernmental decision-making.7 Thus, the EU institutions started coordinating divergent national practices.8 The Treaty of Amsterdam was a decisive next step, since it first created a supranational competence within the framework of today’s TFEU,9 although fully fledged supranationalisation was achieved only by the Treaty of Lisbon (see Hailbronner/Thym, Constitutional Framework, MN 3–4). In 1999, the European Council in Tampere advanced the idea of a Common European Asylum System (CEAS), which later found its way into the EU Treaties as a legally binding objective (see below MN 13). A number of legislative acts were adopted to realise the 1

1 See Articles 28–38 Convention Implementing the Schengen Agreement of 14 June 1985 of 19 June 1990 (OJ 2000 L 293/19), which covered the Benelux countries, France and Germany at the start. 2 See the Convention Determining the State Responsible for Examining Applications for Asylum Lodged in one of the Member States of the European Communities (Dublin Convention) of 15 June 1990 (OJ 1997 C 254/1), which comprised the 12 EEC Member States at the time. 3 The Dublin Convention entered into force on 1 September 1997, thereby replacing the arrangements under the Schengen Implementing Convention in accordance with the latters’ Article 142(1); for further detail on the rules on asylum in the Schengen and Dublin Conventions, see Hailbronner/Thiery, ‘Schengen II and Dublin’, CML Rev. 34 (1997), p. 957–989; and Fro¨hlich, Asylrecht, p. 135–144. 4 AG Cruz Villalo ´ n, MA et al., C-648/11, EU:C:2013:93, para 76 on the former Dublin II Regulation (EC) No 343/2003. 5 Recital 4 of the Dublin Convention, ibid. 6 See the Commission doc. SEC(2001) 756 of 13 June 2001; and Hailbronner, Immigration and Asylum Law, p. 397–401. 7 See Article K.1(1) EU Treaty as amended by the Treaty of Maastricht (OJ 1992 C 191/1). 8 On the Maastricht Treaty and the early practice, see Hailbronner, Immigration and Asylum Law, p. 355–466; Boccardi, Europe and Refugees, p. 61–120; and Fro¨hlich, Asylrecht, p. 145–154. 9 See Article 63 EC Treaty as amended by the Treaty of Amsterdam (OJ 1997 C 340/173); on the negotiation history, see Guild, Immigration Law in the European Community (Kluwer, 2001), p. 295–335; and Boccardi, Europe and Refugees, p. 121–154.

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first phase of the CEAS, which remained limited to minimum standards, in line with restrictive EU competences at the time.10 It focused on vertical policy transfers with the EU legislature emulating practices at national level and spreading them across Europe.11 Many decisions made at the time have shaped the contours of Europe’s asylum policy ever since.12 The former Asylum Reception Conditions Directive 2003/9/EC, the former Asylum Qualification Directive 2004/83/EC, the former Asylum Procedure Directive 2005/85/EC and the former Dublin II Regulation (EC) No 343/2003 together with the former Eurodac Regulation (EC) No 2725/2000 are the bedrock of many achievements and problems of EU asylum policy to this date.13 The move towards a common asylum policy had always been meant to be a gradual one. 3 The Commission proposed, therefore, to replace existing minimum standards by a common set of rules14 in a second phase of legislative harmonisation that was meant to reduce disparities among Member States both in terms of legislative design and administrative practice on the basis of the more robust Treaty base established by the Treaty of Lisbon, which entered into force in December 2009.15 To recast existing legislation the Commission submitted a number of proposals which were adopted after up to four years of occasionally heated debates.16 Disputes among the EU institutions and problems with practical implementation (see below MN 6) resulted in detailed prescriptions on some questions, which leave little leeway to Member States and which can make it hard to keep an overview of the various facets of Europe’s asylum policy acquis. Different chapters of this commentary will focus on the interpretation of the new Asylum Qualification Directive 2011/95/EU, the new Asylum Procedure Directive 2013/32/EU, the new Asylum Reception Conditions Directive 2013/33/EU and the new Dublin III Regulation (EU) No 604/2013.17 It is in the nature of asylum policy that the European Union cannot control many 4 events in countries of origin and transit which have an impact on cross-border movement. This leaves the CEAS with a potentially open flank, since the instruments adopted concentrate on legislative harmonisation among the Member States. Their regulatory leverage can influence events beyond the EU’s borders only indirectly. The move towards a continental asylum system entailed that the situation of the external borders became the subject of debate following the death of thousands of migrants trying to cross the Mediterranean, often on boats not fit for travel on the high seas.18 Later that year, the migratory routes in the Eastern Meditteranean, from Turkey to Greece and, 10

Cf. Article 63(2)(a) EC Treaty, ibid. See Costello, Administrative Governance, p. 313–314; national practices concerned, for instance, the definition of refugee status, accelerated procedures at the border or safe third countries rules. 12 For the underlying policy design, see the Commission Communication, COM(2000) 755; and the Commission Communication, COM(2003) 152. 13 On the legislation of the first phase, see the first edition of this Commentary published in 2010, as well as Teitgen-Colly, Asylum, p. 1503–1566; de Zwaan, ‘EU Asylum and Immigration Law and Policy’, in: ibid. (ed), Freedom, Security and Justice in the European Union (T.M.C. Asser Press, 2006), p. 91–150; or Sidorenko, The Common European Asylum System (CUP, 2007). 14 It should be borne in mind that in EU terminology a ‘common’ policy does not designate the most intensive form of supranational action, i. e. a common policy regularly contains room for a certain degree of diversity among the Member States, see below MN 13. 15 Cf. the Commission Green Paper, COM(2007) 301; and the policy plan on asylum in accordance with the Commission Communication, COM(2008) 360. 16 For an overview, see Boeles et al., European Migration Law, ch. 6; Peers, EU Justice, ch. 5; and Stern/ Tohidipur, Migration, § 14 paras 63–121. 17 Moreover, legislation on the second phase comprises the new Eurodac Regulation (EU) No 603/2013 (OJ 2013 L 180/1), which is not discussed in this commentary. 18 While the situation between Spain (incl. the Canary Islands) and Northern Africa received much attention in the 2000s, the journey between Libya and Italy or Malta has been a focal point for years, while the so-called Eastern route via Turkey and Greece or the Western Balkans gained relevance after 2010. 11

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via the Western Balkans, to Central Europe were the focus of attention with almost one million people entering the EU. The response of the EU institutions has been a mix of measures ranging from Frontex operations and the adoption of relation and resettlement schemes (see below MN 26, 28, 36) to enhanced cooperation with countries of origin or transit, in particular Turkey.19 Corresponding legal debates concern the extraterritorial scope of human rights and statutory instruments (see Thym, Legal Framework for Entry and Border Controls, MN 38–41) the Sea Borders Regulation (see Ryan, Regulation (EU) No. 656/2014) the reform of the Dublin III Regulation (see Hruschka/Maiani, Regulation (EU) No 604/2013 and the effective implementation of the Asylum Reception Conditions Directive (see Peek/Tsourdi, Directive 2013/33/EU). The reform debate was ongoing at the time of publication. 5 EU asylum policy is often criticised for an alleged focus on restrictive measures, trying to prevent migrants from reaching Europe,20 mirroring the original concept of flanking measures to compensate states for the loss of control over internal borders in a move that critics regularly refer to as ‘fortress Europe’.21 Yet the overall picture is more nuanced. The criticism of entry and border control policies contrasts with a rather generous definition of the criteria for refugee status and subsidiary protection in the Asylum Qualification Directive 2011/95/EU and corresponding procedural rules and reception conditions, which comprise extensive guarantees for vulnerable groups. As a result of the second phase of legislative harmonisation, during which the European Parliament and ECJ judgments played a prominent role, the common legislative standards for international protection are laudable,22 although generous recognition criteria and reception conditions do respond directly to the continued criticism of the allegedly restrictive entry and border control policies. Notwithstanding practical problems in some Member States (see below MN 6) and the asymmetric distribution of asylum applications within Europe (see below MN 29), the Common European Asylum System was instrumental in establishing refugee protection systems in all EU Member States, some of which had not previously contribute substantially to international activities in support of refugees.23 6 In the field of asylum, the approximation of national laws by the EU institutions does not always result in effective implementation.24 The most pronounced expression of 19 Cf. the ‘strategic response’ by Council doc. 8714/1/12 of 23 April 2012; the European Council, EUCO doc. 18/15 of 23 April 2015; and the Commission’s Agenda on Migration, COM(2015) 240; and, on the Eastern Meditteranean Council doc. 12002/15 of 14 September 2015; the Commission Communications, COM(2015) 490, and COM(2015) 510; the Commission MEMO IP/15/5904 of 26 October 2015; and the EU-Turkey Summit of 29 November 2015. 20 See, by way of example, Goodwin-Gill, ‘The Right to Seek Asylum: Interception at Sea and the Principle of Non-Refoulement’, IJRL 23 (2011), p. 443–457. 21 See El-Enany, ‘Who is the New European Refugee?’, EL Rev. 33 (2008), p. 313–335; Guild, ‘The Europeanisation of Europe’s Asylum System’, IJRL 18 (2006), p. 630, 638–640; or Moreno-Lax, ‘Life after Lisbon: EU Asylum Policy as a Factor of Migration Control’, in: Acosta Arcarazo/Murphy (eds), EU Security and Justice Law (Hart, 2014), p. 146, 148–157. 22 Contrast the criticism at the recognition criteria and reception conditions after the first phase by, among others, Juss, ‘The Decline and Decay of European Refugee Policy’, OJLS 25 (2005), p. 749–792; and Guiraudon, ‘European Integration and Migration Policy: Vertical Policy-Making as Venue Shopping’, JCMSt. 38 (2000), p. 251–271 to the more positive outlook for those having reached EU territory by Guiraudon, ‘The Constitution of a European Immigration Policy Domain’, Journal of European Public Policy 10 (2003), p. 263–282; and Acosta Arcarazo/Geddes, ‘The Development, Application and Implications of an EU Rule of Law in the Area of Migration Policy’, JCMSt. 51 (2013), p. 179–193. 23 Cf. Byrne/Noll/Vedsted-Hansen, New Asylum Countries? Migration Control and Refugee Protection in an Enlarged European Union (Kluwer, 2002); and Geddes, The Politics of Migration and Immigration in Europe (Sage, 2003), chs 7–8. 24 Cf. Thielemann, ‘How Effective are National and EU Policies in the Area of Forced Migration?’, Refugee Survey Quarterly 31 (2012), p. 21, 28–34.

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practical deficits is the failure of the Greek asylum system, which both the ECtHR and the ECJ found not to be in compliance with human rights standards and corresponding EU legislation (see below MN 29). It is convincing, therefore, that EU asylum policy has emphasised strengthened practical cooperation in recent years.25 The establishment of the European Asylum Support Office (EASO) in Malta seeks more coherence in the interpretation and application of EU legislation on asylum in the same way as the Eurodac database was meant to render the Dublin Regulation more effective.26 EASO is tasked with sharing information about countries of origin, spreading knowledge about EU asylum law and supporting Member States faced with difficulties, including through emergency support teams.27 The supranational activities of EASO complement the primary responsibility of national institutions to apply the EU asylum acquis effectively (see below MN 27). Administrative bodies alone, however, cannot achieve the desired convergence of national practices; national and European courts retain the responsibility to develop coherent standards for specific scenarios (see below MN 46).

2. Territorial Scope (Member State Participation) Measures on border controls and visas are subject to country-specific opt-outs for the 7 United Kingdom, Ireland and Denmark. The abstract rules guiding these arrangements are described in the introductory chapter to this commentary (see Hailbronner/Thym, Constitutional Framework, MN 38–45). It was demonstrated that the overall picture is rather complex and can be difficult to discern in specific scenarios, since the countryspecific opt-outs for the United Kingdom, Ireland and Denmark do not follow a uniform pattern; there are differences between the rules for Denmark on the one hand and for the United Kingdom and Ireland on the other. Moreover, we are faced with two sets of rules for the aforementioned countries: measures building upon the Schengen acquis and other instruments. In practice, the last recitals of most instruments indicate whether the United Kingdom, Ireland and/or Denmark are bound. In order to facilitate orientation, the list of the measures below indicates whether the instruments commented upon in this volume are binding for the United Kingdom, Ireland and/or Denmark and whether they are considered to be building upon the Schengen acquis. Instrument

United Kingdom

Ireland

Denmark

Schengen?28

Temporary Protection Directive 2001/55/EC

yes

no

no

no

Asylum Qualification Directive 2011/95/EU

no (yes)29

no (yes)30

no

no

25 See Goudappel/Raulus, ‘Introduction’, in: ibid. (eds), The Future of Asylum, p. 1, 8–10; as well as the Commission Communications, COM(2006) 67 and COM(2008) 360, p. 8. 26 See Costello, Administrative Governance, p. 314–318. 27 See the EASO Regulation (EU) No 439/2010 (OJ 2010 L 132/11); Stern/Tohidipur, § 14 paras 117– 121; and the annual reports, available on the EASO website http://easo.europa.eu [last accessed 1 November 2015]. 28 Does the measure build upon the Schengen acquis? If yes, it is subject to the opt-out arrangements in the Schengen Protocol described by Hailbronner/Thym, Constitutional Framework, MN 41, 44. 29 The United Kingdom is not bound by Directive 2011/95/EU, but continues to apply the former Asylum Qualification Directive 2004/83/EC. 30 Ireland similarly continues to apply the former Asylum Qualification Directive 2004/83/EC.

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Asylum Procedures Directive 2013/32/EU

no (yes)31

no (yes)32

no

no

Asylum Reception Conditions Directive 2013/32/ EU

no (yes)33

no

no

no

yes

yes

no (yes)34

no

Dublin III Regulation (EU) No 604/2013

Participation in asylum law instruments commented upon in this volume.

II. Treaty Guidance under Article 78 TFEU Article 78 TFEU 1. The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties. 2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures for a common European asylum system comprising: (a) a uniform status of asylum for nationals of third countries, valid throughout the Union; (b) a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international protection; (c) a common system of temporary protection for displaced persons in the event of a massive inflow; (d) common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status; (e) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection; (f) standards concerning the conditions for the reception of applicants for asylum or subsidiary protection; (g) partnership and cooperation with third countries for the purpose of managing inflows of people applying for asylum or subsidiary or temporary protection. 3. In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament. 31 The United Kingdom is not bound by Directive 2013/32/EU, but continues to apply the former Asylum Procedure Directive 2005/85/EC. 32 Ireland similarly continues to apply the former Asylum Procedure Directive 2005/85/EC. 33 The United Kingdom is not bound by Directive 2013/32/EU, but continues to apply the former Asylum Reception Conditions Directive 2003/9/EC. 34 Denmark signed an agreement with the EU (then still the EC) associating itself with the contents of the former Dublin II Regulation (EC) No 343/2003 (a similar agreement for the Dublin III Regulation has not been signed yet); see Hailbronner/Thym, Constitutional Framework, MN 41.

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1. Compliance with International Law (Article 78(1) TFEU) As opposed to individual Member States, the European Union is not a state party to 8 the Geneva Convention and, therefore, the EU itself is not bound by it as a matter of public international law; the eventuality of formal accession by the EU to the Convention or other forms of international subordination have not been realised so far (see below MN 47). Against this background, the doctrinal significance of Article 78(1) TFEU stands out: the EU asylum acquis must comply with the Geneva Convention and the 1966 Protocol. Non-compliance with the Geneva Convention constitutes an infringement of Article 78(1) TFEU that can result in the annulment of secondary legislation or at least require its interpretation in conformity with the Geneva Convention.35 This position has been reaffirmed in welcome clarity by the ECJ in a number of judgments on today’s Asylum Qualification Directive 2011/95/EU.36 The subordination of the CEAS to the Geneva Convention in Article 78(1) TFEU does not alter its international legal characteristics. As an integral part of EU law, the Geneva Convention continues to be subject to the interpretative principles of public international law (see below MN 49) and Article 78(1) TFEU does not bring about an individual right to asylum transcending the contents of the Geneva Convention,37 although such an individual guarantee could flow from Article 18 of the EU Charter (see below MN 63). The obligation to comply with the Geneva Convention contained in the Treaty of 9 Lisbon is not new; Article 63(1) EU Treaty as amended by the Treaty of Amsterdam and Article K.2(1) EU Treaty as amended by the Treaty of Maastricht contained similar instructions. In contrast to these earlier provisions, Article 78(1) TFEU clarifies, however, that the necessary respect for the Geneva Convention and corresponding human rights guarantees (see below MN 11) applies to all instruments building the EU asylum acquis, including rules on subsidiary and temporary protection (see below MN 19–23).38 In contrast to those governing refugee protection, however, the rules on subsidiary or temporary protection do not implement established doctrinal categories of international law.39 This entails that the EU legislature retains discretion to define or alter the contours of the EU’s subsidiary and temporary protection regimes as long as corresponding rules comply with international refugee and human rights law (see below MN 19–23). Compliance with the Geneva Convention is a matter of course from a political 10 perspective. Doctrinally, however, Article 78(1) TFEU sets out a constitutive obligation, since multilateral conventions to which the EU has not formally acceded can only be relied on within the EU legal order if they have been ratified by all EU Member States and are directly applicable (see Hailbronner/Thym, Constitutional Framework, MN 54– 57). To require EU legislation to comply with the Convention ensures compliance in all circumstances and prevents diverging obligations from being imposed on Member States by EU law and the Geneva Convention. Such discrepancies would have to be 35 Similarly, see Hailbronner, Immigration and Asylum, p. 40; Battjes, European Asylum, p. 101; Muzak, Article 78 TFEU, para 5; and Weiß, Article 78 TFEU, para 5. 36 Cf. ECJ, Abdulla, C-175/08, C-176/08, C-178/08 & C-179/08, EU:C:2010:105, paras 51–53; ECJ, Bolbol, C-31/09, EU:C:2010:351, paras 36–38; ECJ, B., C-57/09 & 101/09, EU:C:2010:661, paras 76–78; and Drywood, Who’s in, p. 1113–1118. 37 Similarly, see Rossi, Article 78 TFEU, para 3; Weiß, Article 78 TFEU, para 6; and Muzak, Article 78 TFEU, para 7. 38 By contrast, Article 63(1) EC Treaty as amended by the Treaty of Amsterdam (OJ 1997 C 340/173) applied to refugee protection sensu stricto only, although it was generally assumed that other rules had to comply with these standards; see Hailbronner, Immigration and Asylum, p. 81; and Battjes, European Asylum, p. 103. 39 Cf. Battjes, Subsidiary Protection, p. 541–561.

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resolved to the benefit of the former given the supremacy of Union law. In accordance with settled ECJ case law, the EU Treaties establish an autonomous legal order (distinct from public international law) in relation to which the rules of conflict concerning the application of successive international treaties relating to the same subject do not apply.40 National courts are obliged to refer alleged infringements of the Geneva Convention to the ECJ by means of a preliminary reference under Article 267 TFEU. Judges in Luxembourg hold the ultimate judicial authority to adjudicate on compliance with international refugee law within the EU legal order and existing case law shows that the ECJ takes this obligation seriously.41 Article 78(1) TFEU ensures that the CEAS is firmly embedded into international refugee law. 11 Article 78(1) TFEU mandates, moreover, that the Common European Asylum System must be in compliance with ‘other relevant treaties.’ Both the wording and the systemic position of this obligation indicate that other treaties should be considered ‘relevant’ whenever their contents relates to the realisation of EU asylum policy.42 Aside from the Geneva Convention this concerns, in particular, international human rights agreements such as the Convention on the Rights of the Child (see Hailbronner/Thym, Constitutional Framework, MN 54) or other potential treaties that may be concluded in the future.43 In line with the general principles of EU law, this obligation should be applied to conventions ratified by all Member States (see Hailbronner/Thym, ibid., MN 55). Other treaties with less ratifications cannot be considered ‘relevant’ in the eyes of the Member States drafting Article 78(1) TFEU.44 This implies, for instance, that the European Agreement on the Abolition of Visas for Refugees of 10 April 1959 cannot be considered binding on the EU legislature under Article 78(1) TFEU, since it has not been ratified by various EU Member States.45

2. Scope of EU Competences (Article 78(2) TFEU) 12

As a shared competence, legislation on asylum must comply with the principles of subsidiarity and proportionality that oblige the EU legislature to limit their action to initiatives that cannot be sufficiently achieved at national level and remain limited, in terms of regulatory intensity, to what is necessary to achieve legitimate policy objectives.46 However, when assessing specific proposals, it should be acknowledged that the farreaching Treaty objective of a Common European Asylum System (see below MN 13) requires a certain amount of generosity in the application of the principles of subsidiarity and proportionality in support of EU action.47 The term ‘measure’ in the introductory part 40 Cf. Article 30 Vienna Convention on the Law of Treaties; for a seemingly different position, read Battjes, European Asylum, p. 59–61, 167–168; see also Goodwin-Gill/McAdam, Refugee, p. 62–63. 41 See Drywood, Who’s in, p. 1113–1118, who also highlights, rightly in our view (see Thym, Legal Framework for EU Immigration Policy, MN 28–36), that the ECJ accepts the Geneva Convention as a legal limit for EU legislation without positioning it – like Union citizenship – as a lone star guiding interpretation in areas where no distinct doctrinal limitations exist. 42 Similarly, see Battjes, European Asylum, p. 97; and Muzak, Article 78 TFEU, para 6. 43 Cf. Rossi, Article 78 TFEU, para 8; see also Peers, ‘Human Rights, Asylum and European Community Law’, Refugee Survey Quarterly 24 (2005), p. 24, 28–30. 44 Cf. Battjes, European Asylum, p. 98; this interpretation corresponds to the basic idea of the international law of treaties that states cannot be bound without their consent. 45 See CETS No. 31; in practice, recognised refugees living in the EU Member States benefit from visafree travel within the Schengen area under Article 21 Schengen Implementing Convention as amended by Regulation No 265/2010 (OJ 2010 L 85/1). 46 Cf. Article 5(3), (4) TEU; more generally, on the importance of maintaining the coherence of ‘single’ or ‘common’ EU policies, see ECJ, Gauweiler et al., C-62/14, EU:C:2015:400, para 48. 47 See Peers, EU Justice, p. 393; Rossi, Article 78 TFEU, para 11; and Labayle, ‘L’espace de liberte ´, se´curite´ et justice dans la Constitution pour l’Europe’, Revue trimestrielle de droit europe´en 41 (2005), p. 437, 463.

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of Article 79(2) TFEU indicates that directives, regulations and decisions can be adopted and that operative and financial support, which usually has its legal basis in a decision, are also permissible (see Thym, Legal Framework for Entry and Border Controls, MN 7). The Treaty of Lisbon attributes the rank of primary law to the objective of establish- 13 ing a Common European Asylum System (French: syste`me europe´en commun d’asile; German: gemeinsames europa¨isches Asylsystem),48 which was first introduced by the European Council in Tampere and was later taken up by the Commission.49 The objective generally calls for more commonality and can influence both the application of the principles of subsidiarity and proportionality (see above MN 12) and the interpretation of secondary legislation, in relation to which it supports a restrictive reading of vaguely formulated provisions on more favourable national treatment (see Hailbronner/Thym, Constitutional Framework, MN 28–33). It also resonates with the ECJ’s position that horizontal cooperation among Member States, for instance under the Dublin system,50 is governed by the principle of mutual trust (see below MN 29). In cases of doubt, the Treaty objective of the Common European Asylum System argues for more harmonisation, although the EU institutions retain – as in the case of other Treaty objectives – a principled discretion regarding the necessity and course of EU action. Moreover, the concept of a Common European Asylum System does not command quasi-federal uniformity, since the adjective ‘common’ (French: commun; German: gemeinsam) is usually employed, in the EU context at least, to designate an intermediate degree of harmonisation, in contrast to the designation of a ‘single’ (French: unique; German: einheitlich) policy.51 The common policy on asylum transcends the minimum measures foreseen by the Treaty of Amsterdam (see above MN 2), but stays short of quasi-federal uniformity. a) Uniform Status of Asylum. Whereas Article 63 EC Treaty was limited to the 14 adoption of ‘minimum measures’, Article 78(2)(a) TFEU allows for the agreement on a ‘uniform status of asylum’ (French: statut uniforme d’asile; German: einheitlicher Asylstatus), thereby designating the option of enhanced uniformity in contrast to the lesser degree of harmonisation in relation to ‘common’ rules (French: commun; German: gemeinsam) concerning temporary protection and asylum procedures under Article 78(2)(c), (d) TFEU. The objective of a uniform status implies that the principle of subsidiarity does not prevent EU action in regular circumstances (see above MN 12) and that EU legislation may contain, moreover, mandatory rules not allowing more favourable national treatment (see Hailbronner/Thym, Constitutional Framework, MN 28–31). By contrast, the concept of minimum harmonisation in the Treaty of Amsterdam had been interpreted by some authors as permitting Member States to deviate from EU legislation.52 That conclusion cannot be upheld in the light of the more robust Treaty language and the objective of a CEAS. Article 78(2)(a) TFEU refers to a uniform ‘status of asylum’ instead of the previous 15 orientation towards the ‘qualification of nationals of third countries as refugees.’53 This 48

In contrast to the EU institutions and the ECJ, the Treaty does not use capital letters. See European Council, Presidency Conclusions of the Meeting on 15/16 October 1999 in Tampere, paras 13–17; and above MN 2–3. 50 See ECJ, N.S. et al., C-411/10 & C-493/10, EU:C:2011:865, para 83 using capital letters when describing the Common European Asylum System. 51 Think of the common market (established in 1968) and the later move towards the single market (realised in 1992); similarly, the EU had had a common monetary policy before the single currency was introduced – and the Common Foreign, Security and Defence Policies under the EU Treaty are, both structurally and in terms of policy substance, much less integrated than the CEAS. 52 See ter Steeg, Einwanderungskonzept, p. 228–232. 53 Article 63(1)(a) EC Treaty as amended by the Treaty of Amsterdam (OJ 1997 C 340/173). 49

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change should not be construed, however, as a permission for a distinct status for asylum under EU law that does not coincide with refugee status under the Geneva Convention. Both the drafting history and the general scheme of the EU Treaties argue in support of substantive congruence of the EU asylum status and refugee status; the move towards the Common European Asylum System was always meant to be founded upon the Convention.54 This is confirmed by the explicit references to the Convention in both Article 78(1) TFEU and Article 18 of the EU Charter.55 Legislation on the basis of Article 78(2)(a) TFEU is thus bound to specify the meaning of the Geneva Convention and secondary legislation must be interpreted in light of the latter (see above MN 8). Indeed, the Asylum Qualification Directive is meant to ‘guide the competent national bodies of Member States in the application of the Geneva Convention.’56 Distinct national protection schemes, such as the autonomous concept of asylum under the German Constitution, can be applied in parallel under the condition that they cannot be confused with the EU asylum status.57 16 Besides the criteria governing refugee status, Article 78(2)(a) TFEU allows for the harmonisation of a bundle of rights after recognition, in line with the international practice on the juridical status of refugees under the Geneva Convention.58 The content of international protection under Articles 20–35 Asylum Qualification Directive 2011/ 95/EU is therefore based on Article 78(2)(a) TFEU,59 while reception conditions for those whose application is still being considered are covered by Part F as lex specialis (see below MN 31). Other legal bases must be distinguished, in line with settled ECJ case law, on the basis of the contents and objectives of the instrument in question. Permanent residence status for refugees is thus covered by Article 79(2)(a) TFEU in the same way as reunification with family members not applying for protection for themselves,60 while the transnational coordination of social security schemes continues to be covered by Article 48 TFEU as lex specialis.61 17 In contrast to Union citizens, refugees and other third country nationals do not benefit from an individual right to free movement within the single market; it remains the decision of the legislature to decide whether and, if so, under which conditions free movement within the EU shall be allowed (see Thym, Legal Framework for EU Immigration Policy, MN 28–36). Along similar lines, the option of a uniform asylum status ‘valid throughout the Union’ in Article 78(2)(a) TFEU indicates that the conditions for mobility within Europe are to be determined in the ordinary legislative procedure.62 At present, refugees benefit from intra-European mobility once they have obtained permanent residence status or qualify for residence in accordance with national 54 See the references to the Geneva Convention in European Council, Presidency Conclusions of the Meeting on 15/16 October 1999 in Tampere, para 13 and the deliberations of the European Convention expressed in the Final Report of the Working Group X, doc. CONV 426/02 of 2 December 2002, p. 3–4 paving the way for Article III-266 of the Treaty establishing a Constitution for Europe of 24 October 2004 (OJ 2004 C 310/1), which never entered into force but was resurrected later as today’s Article 78 TFEU. 55 Article 18 of the EU Charter designates a ‘right to asylum’ whose substance and contents is to be defined, according to the EU Charter, by the Geneva Convention. 56 Recital 23 Directive 2011/95/EU. 57 See ECJ, B., C-57/09 & 101/09, EU:C:2010:661, paras 113–121; and Hailbronner, ‘Das Grundrecht aus Asyl – unverzichtbarer Bestandteil der grundgesetzlichen Wertordnung, historisches Relikt oder gemeinschaftsrechtswidrig?’, Zeitschrift fu¨r Ausla¨nderrecht 2009, p. 369, 372–375. 58 Cf. Chapter II of the Geneva Convention on ‘juridical status’; and Hathaway, Rights, p. 370 et seq. 59 See Schieber, Komplementa ¨rer Schutz, p. 310–313. 60 See see Thym, Legal Framework for EU Immigration Policy, MN 12–18; in practice, the differentiation has little impact, since the ordinary legislative procedure applies to both Articles 78 and 79 TFEU. 61 Cf. ECJ, Khalil, C-95/99–98/99 & C-180/99, EU:C:2001:532, paras 39 et seq. 62 The legislature may opt, for instance, to make free movement conditional upon economic selfsufficiency, language skills and/or a job offer in compliance with domestic labour market tests.

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immigration laws.63 Calls for more favourable free movement rights are political in nature and do not reflect a legal obligation on the EU legislature under Article 78 TFEU. This conclusion is reaffirmed, moreover, by the terminological openness of Article 78(2)(a) TFEU in relation to the uniform asylum status ‘valid throughout the Union’, whose transnational validity can alternatively be interpreted as a reference to the mutual recognition of positive asylum decisions as a result of which Member States would be allowed, in cases of secondary movements, to return asylum seekers to the Member State that had issued the recognition.64 It is beyond doubt, given its unequivocal wording, that the personal scope of 18 Article 78(2)(a) TFEU relates to third-country nationals, including stateless persons (Article 67(2) TFEU).65 The EU therefore has no competence for intra-European asylum claims. This exclusion for asylum applications by Union citizens reflects the character of the European Union as a community founded upon the rule of law, democracy and respect for human rights.66 In line with Protocol (No 24) on Asylum for Nationals of Member States of the European Union the Member States ‘shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters.’67 This designation of all Member States as safe countries of origin has the rank of primary law in accordance with Article 51 TEU and benefits from supremacy over conflicting national legislation.68 As a result, applications in accordance with national legislation can be processed only in compliance with the criteria set out in Protocol (No 24), which focus on an abstract assessment of the situation in the country concerned ‘on the basis of the presumption that [the application] is manifestly unfounded.’69 b) Subsidiary Protection. Rules in the Geneva Convention are based on experience of 19 state-sponsored persecution on the European continent in the first half of the 20th century, while today’s mixed migration flows are often characterised by convolution. In practice, many asylum seekers are fleeing indiscriminate violence, in particular civil wars or resort to the asylum system for economic reasons. Moreover, we are witnessing a growing complexity of push factors that are not always covered by the Geneva Convention.70 The EU Treaties react to this challenge, in line with earlier national practices,71 by providing for ‘a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international 63 The provisions of the Long-Term Residents Directive 2003/109/EC were extended to refugees in accordance with Regulation 2011/95/EU (OJ 2011 L 337/9). Moreover, refugees can be allowed, for instance, to work in other Member States on the basis of national immigration laws, while the Blue Card Directive 2009/50/EC and the Seasonal Workers Directive 2014/36/EU do not apply according to their Article 3(2)(b) Directive 2009/50/EC and Articles 2(1), 3(b) Directive 2014/36/EU. 64 See Peers, EU Justice, p. 310–311; at present, the Asylum Qualification Directive 2011/95/EU does not comprise an obligation of mutual recognition, while it is unclear whether Article 12(1) Dublin III Regulation (EU) No 604/2013 applies to those who had received international protection in another EU Member State already (it applies primarily to those not having been recognised as refugees yet). 65 Previous formulations under the Treaties of Amsterdam and Nice had been less clear. 66 See Articles 2, 7 and 49 TEU and the EU Charter of Fundamental Rights. 67 Sole operative Article of the said Protocol (OJ 2008 C 115/305). 68 The Protocol also applies to the United Kingdom, Ireland and Denmark, since it is not covered by their corresponding opt out protocols (see above MN 7). 69 Part D of the sole operative Article, ibid.; for further reflection, see Fro ¨ hlich, Asylrecht, p. 280–298, Zimmermann, ‘Der Vertrag von Amsterdam und das deutsche Asylrecht’, Neue Zeitschrift fu¨r Verwaltungsrecht 1998, p. 450, 453 -454; and Muzak, Article 78 TFEU, paras 10–13. 70 See Feller, ‘Asylum, Migration and Refugee Protection’, IJRL 18 (2006), p. 509–536 und Zetter, ‘More Labels, Fewer Refugees’, Journal of Refugee Studies 20 (2007), p. 172–192. 71 See the comparative survey by Bouteillet-Paquet (ed), Subsidiary Protection of Refugees in the European Union: Complementing the Geneva Convention (Bruylant, 2002).

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protection’ (Article 78(2)(b) TFEU).72 Like in the case of refugee status, the reference to a ‘uniform status of subsidiary protection’ allows for the adoption of recognition criteria and a bundle of rights after recognition, including the option (not: obligation) of mobility rights within the European Union (see above MN 16–17). On the other hand, the adjective ‘uniform’ (French: uniforme; German: einheitlich) implies an enhanced degree of harmonisation (see above MN 14). Distinct legal bases for refugee status (part A) and subsidiary protection (part B) indicate that the legislature is not obliged to treat refugees and those with subsidiary protection equally.73 20 It remains the prerogative of the EU legislature to define the contours of the subsidiary protection status, including grounds for recognition, since the concept of subsidiary protection does not correspond, in contrast to refugee status, to a clearly defined concept under international law (see above MN 15). Nor is the EU legislature obliged, under EU primary law, to limit itself to the criteria enshrined in the present Article 15 Asylum Qualification Directive 2011/95/EU.74 The criteria for subsidiary protection could thus be altered or amended in accordance with the ordinary legislative procedure in response to practical demands and/or political priorities.75 It could also be decided to replace the individual right to subsidiary protection by quantitative protection quotas whose exhaustion would prevent successful applications. Outer limits to legislative discretion can be deduced from the underlying idea of ‘international protection’ which designates factors with a cross-border dimension and relates, in particular, to the situation in countries of origin or transit.76 Article 78(2)(b) TFEU concerns scenarios of forced migration, while ‘voluntary’ migration, in particular for economic purposes, is covered by Article 79 TFEU (see Thym, Legal Framework for EU Immigration Policy, MN 13).77 In the delineation of corresponding instruments, the legislature benefits from a certain discretion on the basis of which it could modify, to a certain extent at least, the ‘rationale of international protection’ identified by the ECJ to exclude residence ‘on compassionate or humanitarian grounds’ in reaction to general shortcomings in the economic and social system of a home state, since Directive 2011/ 95/EU requires persecution by an actor in line with the Geneva Convention.78 72 Article 63(2)(a) EC Treaty as amended by the Treaty of Amsterdam (OJ 1997 C 340/173) had remained ambiguous in this respect, since it was unclear whether the reference to persons who ‘otherwise’ (i. e. in addition to temporary protection) need international protection was a sufficient basis for a distinct subsidiary protection regime; see Hailbronner, Immigration and Asylum, p. 81. 73 For a critique, see Teitgen-Colly, Asylum, p. 1528–1544 contra Battjes, Subsidiary Protection, p. 547. 74 See Muzak, Article 78 TFEU, paras 23–24. 75 Bast, Aufenthaltsrecht und Migrationssteuerung (Mohr Siebeck, 2011), p. 155–156 rightly indicates that EU legislature could establish various distinct subsidiary protection standards, possibly in different legal instruments with separate bundles of rights after recognition; the wording ‘a’ does nothing to present, contra Schieber, Komplementa¨rer Schutz, p. 303, an unsurmountable hurdle in this respect. 76 Cf. Hailbronner, Asylum Law, p. 59, Goodwin-Gill/McAdam, Refugee, p. 421 et seq.; Battjes, Subsidiary Protection, p. 541–542; and UNHCR ExCom, Conclusion on the Provision of International Protection Including Through Complementary Forms of Protection, Conclusion No. 103 (LVI), 7 October 2005. 77 The legal distinction between forced migration (Article 78 TFEU) and voluntary migration (Article 79 TFEU) applies irrespective of the factual pertinence of mixed flows; in line with settled ECJ case law, the identification of the correct legal basis follows the contents and objective of the instrument in question; for further comments, see Schieber, Komplementa¨rer Schutz, p. 303–310; and Battjes, Subsidiary Protection, p. 544–547. 78 See ECJ, M’Bodj, C-542/13, EU:C:2014:2452, paras 35–37, 44 on the basis of Directive 2011/95/EU, although the additional reference to the Geneva Convention indicates that some elements of this description transcend the statutory contents of the Directive and reflect a generic definition of the concept of international protection; see also J.-Y. Carlier/L. Lebœuf, ‘Droit europe´en des migrations’, Journal de droit europe´en (2015), p. 111, 116.

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It is possible to base the criteria for subsidiary protection on non-refoulement 21 obligations under international human rights law which can reach further than refugee protection under the Geneva Convention (see below MN 55–61), although the EU legislature is not obliged to do so.79 When similar terminology is used, it has to be ascertained, by means of interpretation, whether statutory provisions of EU secondary law are to be interpreted in line with international human rights law. In the case of the Asylum Qualification Directive, the ECJ decided that this was not the case (see Storey, Directive 2011/95/EU, Article 15 MN 12–14). This autonomy of subsidiary protection under EU law has a twofold implication: it indicates, firstly, that EU legislation can provide for international protection in situations below the threshold of human rights obligation. Secondly, the opposite scenario could also arise, in theory at least,80 if EU legislation does not extend the concept of subsidiary protection to situations covered by human rights law. Mandatory respect for human rights can be ensured, in the second scenario, on the basis of humanitarian protection rules in domestic immigration and asylum laws beyond the confines of EU legislation.81 c) Temporary Protection. During the civil wars in the former Yugoslavia, many 22 Member States were confronted with a ‘massive inflow’ of people seeking protection. At the time, the idea became popular to establish specific rules for such scenarios, which would allow states to act on the basis of abstract criteria without necessarily analysing, in contrast to asylum applications, the need for international protection on an individual basis.82 The objective of reacting swiftly to situations of massive inflows resulted in the adoption of the Temporary Protection Directive 2001/55/EC, which was the first legally binding instrument ever to be agreed upon by the EU institutions in the field of asylum, and explains why Article 78(2)(c) TFEU provides for an express legal basis for temporary protection. In practice, the Temporary Protection Directive has not been activated so far despite various instances in which this could have been done. The idea to react to scenarios of massive inflows with specific instruments has lost its relevance (see Skordas, Directive 2001/55/EC Article 1 MN 15). Given that temporary protection does not build on a pre-existing concept under 23 international law (see above MN 15, 20), the EU legislature has wide discretion when defining the contours of temporary protection. As an integral part of the Common European Asylum System, rules on temporary protection can potentially be applied to various forms of forced migration (see above MN 20), while temporary residence permits for economic purposes, such as those for seasonal workers, are covered by Article 79 TFEU (see Thym, Legal Framework for EU Immigration Policy, MN 12–13). In a similar vein, the term ‘displaced persons’ in Article 78(2)(c) TFEU indicates that the provision concerns cross-border movements of people in reacting to various forms of hazards in countries of origin, such as civil wars or natural disasters. EU legislation could potentially embrace all these scenarios. d) Procedural Rules. Procedural rules are essential components of the Common 24 European Asylum System, since they support the identification of those in need of international protection and are crucial for efforts to streamline the asylum process to

79

See Schieber, Komplementa¨rer Schutz, p. 302. ECJ, Elgafaji, C-465/07, EU:C:2009:94, para 44 can be interpreted to imply that the present Article 15 Asylum Qualification Directive 2011/95/EU should be interpreted in line with Article 3 ECHR in cases of doubt; for further comments, see Storey, Directive 2011/95/EU Article 15 MN 13. 81 See ECJ, M’Bodj, C-542/13, EU:C:2014:2452, paras 39–46. 82 See Battjes, Subsidiary Protection, p. 543–544; and Hailbronner, Asylum Law, p. 64–65. 80

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respond to increasing numbers of claims, many of which are unfounded.83 Nevertheless, the semantic differentiation between a ‘uniform’ (French: uniforme; German: einheitlich) status of asylum and subsidiary protection (Article 78(2)(a), (b) TFEU) and ‘common’ (French: commun; German: gemeinsam) procedural rules (Article 78(2)(d) TFEU) indicates that the EU Treaty aims for a lesser degree of harmonisation in the field of procedure.84 This hesitation reflects the diversity of national administrative and judicial practices that cannot be approximated as easily as the substantive grounds for granting refugee status. Rather, the EU legislature has to balance the need for commonalities against the respect for national specificities, in line with the principle of subsidiarity (see above MN 12) and the concept of national procedural autonomy (see Hailbronner/Thym, Constitutional Framework, MN 35–36). A truly federal EU asylum agency would require Treaty change (see below MN 27). 25 Article 78(2)(d) TFEU covers provisions on various aspects of the asylum procedure, such as the personal interview, the evaluation by administrative authorities or special rules for vulnerable persons together with guarantees for judicial protection that can be found in the Asylum Procedures Directive 2013/32/EU. In cases of conflict, EU legislation and national administrative practices have to be interpreted in light of the procedural guarantees in the Charter of Fundamental Rights (see Hailbronner/Thym, Constitutional Framework, MN 37). Article 78(2)(d) TFEU covers both applications for asylum and subsidiary protection without necessarily requiring the EU legislature to lay down identical standards for both categories; the term ‘common’ refers to the approximation of differences among the Member States,85 not the equal treatment of asylum and subsidiary protection. Article 78(2)(d) TFEU also covers statutory provisions on safe countries of origin or transit,86 which exist in various Member States and are subject to the caveats laid down in the Asylum Procedure Directive (see VedstedHansen, Directive 2013/32/EU Articles 36–38).87 26 The EU Treaty is silent on the geographical scope of the provision on asylum procedures and does not specify, in particular, whether common ‘procedures for the granting and withdrawing of uniform asylum or subsidiary protection status’ should necessarily apply within the territory of the Member States. This textual ambivalence contrasts with restrictive earlier formulations88 and was deliberate, since today’s Article 78 TFEU was discussed by the European Convention drafting the erstwhile Constitutional Treaty89 in parallel political debates in the early 2000s about the desirability

83 For early reforms in reaction to increasing numbers of asylum applicants in the 1980s, see Hailbronner, ‘Vom Asylrecht zum Asylbewerberrecht’, in: Fu¨rst et al. (eds), Festschrift fu¨r Wolfgang Zeidler, Vol. 1 (de Gruyter, 1987), p. 919–937. 84 See also Battjes, European Asylum, p. 180. 85 On prevailing differences at the time of the European Convention, which discussed the wording of today’s Article 78 TFEU, see Hailbronner/Higgins, ‘General Rapporteur Report’, in: ibid. (eds), Migration and Asylum Law and Policy in the European Union. FIDE 2004 Reports (CUP, 2004), p. 455, 469–470. 86 If one contests the procedural nature of these provisions (see Battjes, European Asylum, p. 151; and Kugelmann, ‘Einwanderungs- und Asylrecht’, in: Schulze/Zuleeg/Kadelbach (eds), Europarecht. Handbuch fu¨r die deutsche Rechtspraxis, 3rd edn (Nomos, 2015), § 41 para 178), one has to activate Article 78(2)(a), (b) TFEU as an additional or alternative legal basis (the ordinary legislative procedure applies to both provisions). 87 See Engelmann, ‘Convergence against the Odds: The Development of Safe Country of Origin Policies in EU Member States (1990–2013)’, EJML 16 (2014), p. 277–302. 88 Article 63(1)(d) EC Treaty as amended by the Treaty of Amsterdam (OJ 1997 C 340/173) referred to ‘procedures in Member States’ (emphasis added). 89 Cf. the critique of the open formulation chosen by the European Convention for today’s Article 78 TFEU by the Joint Comments of Non-Governmental Organisations for the IGC, Towards a Constitution for Europe: Justice and Home Affairs, 1 October 2003, p. 4.

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of external asylum reception centres90 – an idea taken up 10 years later in response to the ongoing asylum crisis during the year 2015.91 In light of the drafting history, it should therefore be assumed that Article 78(2)(d) TFEU covers extraterritorial processing of asylum applications.92 Such scenarios may include, but are not limited to, a European resettlement scheme put forward by the Commission in early June 2015.93 Of course, it would have to be ensured that potential future processing centres comply with international refugee law and human rights requirements (see below MN 52–54, 60).94 The EU institutions cannot bypass these constitutional guarantees by relocating beyond the EU’s borders. In accordance with the EU’s constitutional structure, the supranational level concen- 27 trates on legislative harmonisation and administrative support, while decisions affecting individuals are usually taken at national level. The move towards a federal administration applying EU law directly towards individuals requires a foundation in the EU Treaties (see Thym, Legal Framework for Entry and Border Controls, MN 7). At present, Article 78 TFEU does not provide sufficient legal basis for a federal asylum agency examining asylum application instead of national authorities.95 Its establishment would require Treaty change in accordance with Article 48 TEU. This does not imply, however, that the Union cannot sponsor the effective application of the EU asylum acquis, with regard to which many deficiencies persist (see above MN 6). Within the context of Article 78(2)(d) TFEU the EU can support transnational cooperation among the Member States (see Thym, ibid., MN 17) and establish the European Asylum Support Office (EASO), which started its work in 2010.96 If EASO sends emergency support teams comprised of national officials to another Member State, there is only a gradual practical difference between enhanced transnational cooperation and the move towards a federal asylum office, although this distinction remains relevant for constitutional reasons. While enhanced transnational and vertical cooperation can be achieved within the existing Treaty framework, a federal EU asylum bureaucracy replacing the Member States would require Treaty change. e) Determining which Member State is Responsible. Rules determining the Member 28 State responsible for examining asylum applications are the historic foundation of the Common European Asylum System in order to prevent both forum shopping and the phenomenon of refugees in orbit (see above MN 1). Corresponding rules are nowadays laid down in the Dublin III Regulation (EU) No 604/2013, which comprises, in line with Article 78(2)(e) TFEU, both ‘criteria’ and procedural ‘mechanisms’ (French: 90 On the debate, see Garlick, ‘The EU Discussions on Extraterritorial Processing: Solution or Conundrum?’, IJRL 18 (2006), p. 601–629; and Bro¨cker, Die externen Dimensionen des EU-Asyl- und Flu¨chtlingsrechts im Lichte der Menschenrechte und des Vo¨lkerrechts (Dr. Kovac, 2010). 91 See above MN 5 and, more specifically, the Commission Communication, COM(2014) 154, p. 8. 92 See Battjes, European Asylum, p. 173; ter Steeg, Einwanderungskonzept, p. 463–464; and den Heijer, Europe and Extraterritorial Asylum (Hart, 2012), p. 205. 93 Cf. the Commission Recommendation, COM(2015) 3560. 94 It would have to be assessed carefully whether the Member States and/or the EU hold jurisdiction in asylum processing centres, without which the ECHR cannot be applied extraterritorially (see Thym, Legal Framework for Entry and Border Controls, MN 38–39), while corresponding jurisdictional standards under the EU Charter remain unclear at this juncture (see ibid., MN 41). 95 Article 78(2)(d) TFEU presumes the existence of national asylum systems, for which ‘common’ standards are to be established, in the same way as Article 78(2)(e) TFEU assumes that a specific Member State shall be responsible for considering an application for international protection. 96 See Regulation (EU) No 439/2010 (OJ 2010 L 132/11); legal bases for EU action need not authorise explicitly, in accordance with ECJ, United Kingdom vs Council & European Parliament, C-217/04, EU:C:2006:279, para 42 et seq., that agencies can be established on their basis (in the case of EASO, Article 74 TFEU can be activated in conjunction with Article 78(2)(d) TFEU).

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me´canismes; German: Verfahren).97 It is the prerogative of the legislature to decide upon relevant criteria in the legislative procedure; the legislature can modify existing rules or opt for an alternative mechanism, such as a quota system allocating asylum seekers among Member States on the basis of a redistribution key set out in EU legislation.98 The open terms ‘criteria’ and ‘mechanisms’, which define the EU competence under Article 78(2)(e) TFEU, are not confined to the former or present Dublin Regulations. New or additional distribution or relocation mechanisms can be introduced in accordance with the ordinary legislative procedure99 or established by means of agreements among representatives of the Member States.100 However, the Treaty covers asylum seekers only and does not establish a competence for the relocation of recognised refugees. In order to support the application of EU legislation (see Thym, Legal Framework for Entry and Border Controls, MN 10),101 Article 78(2)(e) TFEU also covers instruments rendering the Dublin Regulation more effective, such as the Eurodac database of finger prints and other data.102 29 It is well known that the former and present Dublin Regulations have resulted in a considerable asymmetry in the number of asylum applications across Europe. In this respect, Article 80 TFEU lays down a general obligation to support Member States that assume more responsibilities than others for the functioning of the Common European Asylum System. This obligation can be implemented in various ways, including by means of financial and/or operative support, and does not necessarily require a recast of the Dublin III Regulation (EU) No 604/2013 (see below MN 43–44). Moreover, human rights can oblige Member States not to transfer asylum seekers to another Member State in exceptional scenarios whenever there are systemic flaws in the asylum procedure and in the reception conditions (see below MN 58). The ECJ has emphasised, in this context, that the principle of mutual trust mandates a careful assessment in order not to jeopardise the functioning of the CEAS, while the ECtHR seems to insist on stricter standards. In cases of conflict, the ECJ is the ultimate authority on the interpretation of the EU asylum acquis (see below MN 56). 30 Norway, Iceland and Switzerland (and Liechtenstein), which participate in the Schengen area on the basis of public international law (see Thym, Legal Framework for Entry and Border Controls, MN 29), have concluded international agreements with the European Union providing for their participation in the Dublin system on the basis of a dynamic institutional framework covering amendments to or recasts of previous legislation, such as the new Dublin III Regulation (EU) No 604/2013.103 Moreover, 97 In contrast to Article 63(1)(a) EC Treaty as amended by the Treaty of Amsterdam (OJ 1997 C 340/ 173), Article 78(2)(e) TFEU applies to both asylum and subsidiary protection. 98 Germany’s quota system and its potential implications for the EU, see Thym/Beverungen/Gies, Germany’s Domestic “Ko¨nigstein Quota System” and EU Asylum Policy, Verfassungsblog.de on 11 October 2013. 99 It is compatible with primary law to establish parallel mechanisms such as the partial quota for intraEuropean relocation and/or voluntary resettlement schemes in parallel to the Dublin III Regulation suggested by the Commission Proposal, COM(2015) 450. 100 Legally speaking, agreements of Member States do not constitute secondary EU law, even if they are adopted by national representatives ‘meeting within the Council’; such practice was common in the 1960s and 1970s and they were reactivated for the first relocation and resettlement schemes adopted in July 2015 according to Council doc 11097/15 for intergovernmental quotas accompanying Council Decision 2015/1523 (OJ 2015 L 239/143) and Council doc 11130/15; as a result, the ECJ would not be competent for interpretation and the EU Charter would not apply. 101 Similarly, see Weiß, Article 78 TFEU, para 38. 102 Cf. the new Eurodac Regulation (EU) No 603/2013 (ABl. 2013 L 180/1) as well as implementing legislation. 103 For Norway and Iceland, see the Agreement of 19 January 2001 (ABl. 2001 L 93/40), which entered into force on 1 April 2001 (OJ 2006 L 112/16); for Switzerland, see the Agreement of 26 October 2004 (OJ

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Denmark concluded an agreement on its association with the former Dublin II Regulation (EC) No 343/2003,104 since the Danish opt out does not allow, like in the case of the United Kingdom’s and Ireland’s, for its participation in EU legislation building the area of freedom, security and justice (see above MN 7). The agreement has not been updated to cover the new Dublin III Regulation (EU) No 604/2013 and it would be preferable, for reasons of legal clarity, if Denmark were to amend its opt out instead of concluding cumbersome intra-EU agreements. f) Reception Conditions. Article 78(2)(f) TFEU allows for the adoption of ‘standards 31 concerning the conditions for the reception of applicants for asylum or subsidiary protection.’ The reference to ‘applicants’ makes clear that the provision concerns the status during the asylum procedure, while the bundle of rights of those having been granted international protection is covered by Article 78(2)(a), (b) TFEU (see above MN 14, 19). Once an application has been rejected, the former applicant for asylum must regularly be characterised as an illegally staying third-country national within the meaning of the Return Directive 2008/115/EC, whose return to the country of origin or transit is covered by Article 79(2)(c) TFEU (see Thym, Legal Framework for EU Immigration Policy, MN 19–20). Like in the case of recognised refugees, the EU legislature holds the power to define the bundle of rights, such as the conditions governing access to the labour market, education or social assistance,105 which can be found in the Asylum Reception Conditions Directive 2013/33/EU. Whenever secondary EU legislation lays down social policy standards, the rights and principles enshrined in the chapter on ‘solidarity’ of the Charter of Fundamental Rights can influence the interpretation (see Hailbronner/Thym, Constitutional Framework, MN 49). The reference in Article 78(2)(f) TFEU to ‘standards’ (French: normes; German: 32 Normen) should not be interpreted strictly as covering rules on legislative harmonisation only. Rather, the provision should be interpreted in the light of Article 80 TFEU on solidarity, which does not in itself provide a legal basis for support instruments but can influence the interpretation of other Treaty provisions (see below MN 43). This implies that Article 78(2)(f) TFEU covers financial or operative support, including through the Asylum, Migration and Integration Fund that supports projects concerning the accommodation of asylum seekers.106 g) Cooperation with Third States. Although asylum has, by definition, a cross- 33 border dimension, most national asylum systems and international refugee law until recently focused on the situation after asylum seekers had reached the state territory. The Europeanisation of asylum policy encourages a gradual paradigm change if states on the European continent collaborate in order to ensure the effective application of the Geneva Convention (see above MN 5), thereby mirroring a general thrust of EU migration policy to support enhanced international cooperation.107 The European Council has repeatedly called upon the EU institutions to extend international collaboration beyond Europe and to support a global approach.108 Against this background, 2008 L 53/5), which entered into force on 1 March 2008 (OJ 2008 L 53/18) and provides for the accession of Liechtenstein. 104 See the Agreement (OJ 2006 L 66/40), which entered into force on 1 April 2006 (OJ 2006 L 96/9). 105 Similarly, see Peers, ‘The EU Institutions and Title IV’, in: ibid./Rogers (eds), EU Immigration and Asylum Law (Martinus Nijhoff, 2006), p. 47, 56; and Battjes, European Asylum, p. 149 106 See the Regulation (EU) No 516/2014 (ABl. 2014 L 150/168). 107 See Thym, ‘Towards International Migration Governance?’, in: Van Vooren et al. (ed), The Legal Dimension of Global Governance: What Role for the EU? (OUP, 2013), p. 289–305. 108 See the European Council, Presidency Conclusions of the Meeting on 15/16 October 1999 in Tampere, paras 11–12; the Hague Programme (OJ 2005 C 53/1), p. 5; the Stockholm Programme (OJ

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the European Convention, when drafting the erstwhile Constitutional Treaty, the provisions of which later found their way into the Treaty of Lisbon, established an explicit legal basis for ‘partnership and cooperation with third countries’ in today’s Article 78(2)(g) TFEU.109 This express provision on international cooperation reaffirms that the EU can cooperate with third states also in situations in which the adoption of secondary legislation does not result in an exclusive external treaty-making competence (cf. Thym, Legal Framework for Entry and Border Controls, MN 28), including through financial and operative support.110 34 Although Article 78(2)(g) TFEU constitutes an integral part of the Common European Asylum System and refers to cooperation with third states ‘for the purpose of managing inflows of people applying for asylum or subsidiary or temporary protection,’111 the provision should not be confined to movements with an immediate impact on the functioning of the CEAS, since the factors defining migration flows are inherently blurred.112 Moreover, a broad reading supports the effective realisation of other EU policies, including on external action and development cooperation.113 Other legal bases must be distinguished, in line with settled ECJ case law, on the basis of the content and objective of the instrument in question; if the latter concerns primarily the functioning of the CEAS, Article 78(2)(g) TFEU should be used, while other instruments can be based on other policies, such as the instruments for financial support in the context of development and neighbourhood policies.114 Corollary rules on asylum in association and neighbourhood agreements are covered by these legal bases, while Article 78(2)(g) TFEU applies to sectoral treaties (see Thym, Legal Framework for Entry and Border Controls, MN 15). 35 Support for third states in the field of asylum can help establish a favourable political and practical context for the realisation of the controversial proposal to establish asylum reception centres in North Africa.115 Article 78(2)(g) TFEU does not, in itself at least, provide a sufficient legal basis for the initiation of such centres, since cooperation with third states on the basis of this provision must be distinguished from protection by national personnel with EU support abroad. It has been explained above, however, that the Treaty of Lisbon deliberately discontinued the previous limitation of the Common European Asylum System to the territory of the Member States. Article 78(2)(d) TFEU in particular is formulated in such an open manner that it could justify future legislation providing for external asylum processing centres that would 2010 C 115/1), p. 33–34; and European Council, Conclusions of the Meeting on 26/27 June 2014 in Ypres, doc. EUCO 79/14, para 8. 109 Cf. Article III-266(2)(g) of the Treaty establishing a Constitution for Europe of 24 October 2004 (OJ 2004 C 310/1), which never entered into force but corresponds to today’s Article 78(2)(g) TFEU. 110 An example are Regional Protection Programmes (RPPs); cf. de Vries, ‘An Assessment of “Protection in Regions of Origin” in Relation to European Asylum Law”, EJML 9 (2007), p. 83–103. 111 Emphasis added. 112 A regional protection programmes in the African Great Lakes region, for instance, can have at least some impact on the number of asylum seekers in Europe. 113 Cf. Articles 21–22 TEU and Articles 208–214 TFEU on development cooperation, economic, financial and technical assistance as well as humanitarian aid. 114 On support for migration-related projects, see Article 5(2)(i) Regulation (EC) No 1905/2006 (OJ 2006 L 378/41) on the financing instrument for development cooperation and, in the context of the neighbourhood policy, Article 2(2)(r) Regulation (EC) No 1638/2006 (OJ 2006 L 310/1). 115 On the debate in the early 2000s, in parallel to discussion in the European Convention drafting today’s Article 78(2)(g) TFEU, see ter Steeg, Einwanderungskonzept, p. 305 et seq.; Roig-Granjon, ‘Des tentatives d’externalisation de la protection des re´fugie´s au de´veloppement de la dimension exte´rieure de la politique d’asile europe´enne’, in: Millet-Devalle (ed), L’Union europe´enne et la protection des migrants et des re´fugie´s (Pedone, 2010), p. 77–90; and the Joint Comments of Non-Governmental Organisations for the IGC, 1 October 2003, p. 4; the debate was taken up during 2015 by various interior ministers.

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have to be run by the Member States, possibly in cooperation with EASO (see above MN 26–27). In order to render such external processing centres effective, Article 78(2)(g) TFEU could be activated to guarantee a favourable political and administrative context, for instance through support to third states to apply their international legal obligations effectively.

3. Emergency Situations (Article 78(3) TFEU) Legislation on temporary protection in the event of a massive inflow is covered by 36 Article 78(2)(c) TFEU and need not be confined to the statutory status quo under the present Temporary Protection Directive 2011/55/EC (see above MN 22–23). By contrast, Article 78(3) TFEU concerns, in line with the previous Article 64(2) EC Treaty,116 other measures for the benefit of certain Member States in emergency situations, although this support must be confined, according to the wording, to ‘provisional measures.’ It corresponds to the desire of swift decision-making in emergency situations that the Council decides by qualified majority after consulting the European Parliament.117 When deciding the time period during which provisional measures should apply, the EU institutions benefit from a certain discretion,118 which also extends to the definition of what constitutes an ‘emergency situation’ justifying recourse to Article 78(3) TFEU.119 Similarly, the institutions have a margin of appreciation when deciding upon the substance of support measures.120 They may, in particular, include financial or operative support, among others by EASO, the activation of which does not necessarily require recourse to Article 78(3) TFEU (see above MN 27, 32). By contrast, any permanent amendment of secondary legislation outside the confines of the ordinary legislative procedure cannot be decided on the basis of Article 78(3) TFEU;121 neither can visa requirements be imposed on that basis.122 This conclusion rests on the rather vague language that does not contain any clear indication that ‘provisional measures’ can justify non-compliance with secondary EU legislation. However, it appears possible to lay down leges speciales which apply for a temporary period like in the case of the relocation schemes established in 2015 which implied a temporary derogation from the Dublin III Regulation.123

III. Overarching Principles 1. Mixed Migration Flows and Legal Status Change It is explained elsewhere that rules on immigration and asylum in the EU Treaties do 37 not conceive cross-border movements of people as simple one-step settlements that instantly result in either full membership or illegal residence. Instead, the careful 116

Article 64(2) EC Treaty as amended by the Treaty of Amsterdam (OJ 1997 C 340/173). Given the absence of any indication to the contrary, qualified majority voting in the Council applies in accordance with Article 16(3) TEU. 118 The Treaty of Lisbon discontinued the previous limitation to a six-month period; the 24-month period of the EU relocation scheme mentioned below arguably stretches the discretion to its limits. 119 COM(2015) 286, p. 2–3 had extensive recourse to statistical data to justify the proposal of a relocation scheme, which need not be done in all scenarios; political institutions have to assess the situation politically and need not embark upon a quasi-academic justification. 120 See Hailbronner, Immigration and Asylum, p. 83. 121 Similarly, see Weiß, Article 78 TFEU, para 79; contra ter Steeg, Einwanderungskonzept, p. 158; and Muzak, Article 78 TFEU, para 45. 122 Contra Rossi, Article 78 TFEU, paras 31, 33. 123 See Council Decision 2005/1523 (OJ 2015 L 239/146) and Council Decision 2015/1601 (OJ 2015 L 248/80). 117

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distinction of different statuses in the wording of the EU Treaties implies that the legal dimension of regular migrants’ biographies can be described as a process of legal status change with distinct sets of rules applying in different scenarios (see Thym, Legal Framework for EU Immigration Policy, MN 7). This conclusion extends to the varying facets of the existing EU asylum acquis. In accordance with secondary law, asylum seekers entering Europe may encounter ‘mechanisms for determining which Member State is responsible’ (Article 78(2)(e) TFEU) and are accommodated under harmonised reception conditions (Article 78(2)(f) TFEU). Their asylum application will be decided on the basis of common procedures (Article 78(2)(d) TFEU) and single recognition criteria (Article 78(2)(a), (b) TFEU). The decision on the application for asylum will not usually be the end of the migrants’ encounter with EU immigration and asylum law. Depending on the circumstances of the individual case, each migrant will continue being confronted with different scenarios. 38 Following a positive asylum decision, migrants in need of international protection obtain the right to stay in the Member State that took the decision. The option of an asylum status valid throughout the Union does not necessarily entail that free movement across Member States should be granted from day one, since the legislature remains free to choose among different options of a pan-European status (see above MN 17). De lege lata, statutory free movement for recognised refugees is guaranteed after five years of legal residence under the conditions laid down in the Long-Term Residents Directive (see Thym, Directive 2003/109/EC Article 3 MN 6). Moreover, those in need of international protection can qualify for unconditional free movement after naturalisation in a Member States as a result of which rules for Union citizens apply.124 Existing directives on legal migration for other purposes usually exclude asylum seekers and recognised refugees ratione personae.125 However, Member States can allow access to their territory to refugees living in another Member State in accordance with more favourable national rules adopted beyond the confines of the said EU directives on legal migration.126 The EU legislature remains free, moreover, to amend legislation and to extend, for instance, existing rules under the Blue Card Directive to those in need of international protection. 39 After an asylum application has been rejected, the directives on asylum no longer apply. Article 9(1) Asylum Procedure Directive 2013/32/EU explicitly states that the right to remain in the Member States pending the examination of the application exists ‘for the sole purpose of the procedure until to the determining authority has made a decision’ and that ‘[t]hat right to remain shall not constitute an entitlement to a residence permit.’ This implies that unsuccessful asylum seekers must usually be qualified as people who no longer fulfil the conditions for entry, stay or residence in the Member States, i. e. as illegal residents for the purposes of the Return Directive 2008/115/EC.127 They should therefore be returned to countries of origin or transit in 124 Naturalisation in accordance with national laws is, as the ultimate legal expression of local integration, one of the three durable solutions promoted by UNHCR; cf. Article 34 Geneva Convention and UNHCR, Framework for Durable Solutions for Refugees and Persons of Concern, May 2003. 125 See Article 3(2)(b) Blue Card Directive 2009/50/EC; Article 2(1) ICT Directive 2014/66/EU; and Article 2(3) Seasonal Workers Directive 2014/36/EU require residence abroad and therefore do not cover those living in a Member State already; the wording of Article 3(2)(a) Researcher Directive 2005/71/EC and Article 3(2)(a) Student Directive 2004/114/EC remains ambiguous and should be interpreted as covering applicants for international protection only; cf. Hailbronner/Gies, Researcher Directive, Article 3 MN 3. 126 See, generally, on the admissibility of more favourable national rules Hailbronner/Thym, Constitutional Framework, MN 28–33; this may, in particular, concern rules on labour migration. 127 See Vedsted-Hansen, Asylum Procedure Directive 2013/32/EU, Article 9 MN 2–4; as well as Article 3(2) Return Directive 2008/115/EC.

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accordance with human rights law and statutory requirements set out at national and European level, including the Return Directive 2008/115/EC. In practice, Member States do not return all those who could be returned in accordance with Union law and instead often grant various degrees of complementary protection for humanitarian or other purposes, either on the occasion of a rejection of an asylum application or at a later stage.128 These various forms of complementary protection remain intact besides EU legislation (see above MN 20). Moreover, many Member States regularly pursue regularisation campaigns by granting residence permits to illegal residents in accordance with national laws which have not so far been harmonised by the EU (see Thym, Legal Framework for EU Immigration Policy, MN 13). The prevalence of so-called ‘mixed flows’ designates the underlying reason for the 40 ambivalence of asylum law after the recognition or rejection of the initial application. People applying for asylum leave their home countries for various reasons that cannot always be considered an expression of ‘forced migration.’129 This entails that political reactions to the pertinence of mixed migration flows often embrace a multi-pronged approach – as the Commission’s ‘Agenda on Migration’ in response to the recent refugee crisis (see above MN 5) illustrates: it included various policy initiatives and tried to combine different instruments ranging from enhanced protection for those in need to reinforced return policies.130 Generally speaking, political responses to mixed flows will often include, on the one hand, measures for people in need of international protection, such as resettlement, the fight against the root causes of involuntary movements or protection in countries of origin or transit. On the other hand, instruments focusing on the prevention of illegal entry and more effective procedures for the identification of people (not) in need of protection, such as safe country of origin or transit concepts, will often be considered together with initiatives rendering return policies more effective.

2. Solidarity (Article 80 TFEU)

Article 80 TFEU The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the Union acts adopted pursuant to this Chapter shall contain appropriate measures to give effect to this principle. Calls for more solidarity and a fair sharing of responsibilities have accompanied the 41 Europeanisation of asylum policy from the beginning. In the 1990s, Germany was unsuccessful with its demand to complement the Dublin Convention with a quota system on the relocation of asylum seekers among Member States.131 During the 2000s and 2010s, the states at the external Schengen borders in Southern and South-Eastern Europe complained about the conceptual asymmetry of the Dublin system that allocates 128

For a comparative survey, see Schieber, Komplementa¨rer Schutz, ch 3. Cf. Feller, ‘Asylum, Migration and Refugee Protection: Realities, Myths and the Promise of Things to Come’, IJRL 18 (2006), p. 509, 515–518; and Hailbronner, ‘Die Genfer Flu¨chtlingskonvention vor den Herausforderungen des 21. Jahrhunderts’, in: ibid./Klein (eds), Flu¨chtlinge – Menschenrechte – Staatsangeho¨rigkeit. Menschenrechte und Migration (C.F. Mu¨ller, 2002), p. 51–70. 130 See COM(2015) 286. 131 See Hailbronner, Immigration and Asylum, p. 417–425; and Noll, Negotiating Asylum. The EU Acquis, Extraterritorial Protection and the Common Market of Deflection (Martinus Nijhoff, 2000), p. 285–296. 129

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more responsibilities to the states of first entry (even if some Central and Northern European countries, such as Sweden, Belgium, Austria and Germany, account for the majority of applications in practice, also because many of those who are registered first in Italy or Greece more on to Northern Europe).132 Against this background, the European Convention drafting the erstwhile Constitutional Treaty agreed upon a specific Treaty provision on solidarity,133 and the European Council appealed for more solidarity before the formal entry into force of the provision,134 thereby influencing the adoption of numerous policy initiatives concerning various forms of financial, logistical and operative support (see below MN 44). 42 In a European Union aspiring to be some sort of political union, solidarity among its federated states should be considered a means to its own end in order to ensure a sustainable basis for the European integration process. Similar attempts to reinforce solidarity within the EU were established, in parallel to Article 80 TFEU, with regard to other policy areas, such as economic policy, energy and in relation to potential terrorist attacks or natural disasters.135 At the same time, political science shows that solidarity can be an important precondition for effective cooperation among states to the benefit of a better asylum policy implemented in practice (see above MN 6). Thus, the willingness to participate in the construction of the CEAS is enhanced by mechanisms embedding inter-state cooperation in a framework promoting mutual trust in the common interest.136 Such convergence can be pursued through a give-and-take approach in various policy areas or within the domain of migration and asylum policy sensu stricto. The same applies to attempts to foster cooperation with third states in the field of asylum (see above MN 33–35). 43 In contrast to an earlier Treaty provision,137 Article 80 TFEU establishes no freestanding competence for the adoption of measures promoting solidarity and responsibility sharing among Member States.138 Rather, other ‘Union acts adopted pursuant to this Chapter’ shall contain instruments putting Article 80 TFEU into effect, which as a result must be legally construed as a horizontal provision that may influence the interpretation of other Treaty competences on border controls, asylum and immigration.139 This means, more specifically, that the interpretation of Articles 77–79 TFEU in light of the general scheme of the EU Treaties, including Article 80 TFEU, may allow for the promotion of solidarity and burden sharing among Member States. The level of generality in the wording of Article 80 TFEU and the necessary combination with other Treaty provisions entail that the EU institutions have broad political discretion in deciding which measures are ‘appropriate’ to promote solidarity and responsibility 132 For regularly updated data, see the Eurostat statistics available online at http://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=migr_asyappctza&lang=en [last accessed 1 November 2015]. 133 The initial proposal for Article III-268 Treaty establishing a Constitution for Europe of 24 October 2004 (OJ 2004 C 310/1), which never entered into force, was resurrected later as today’s Article 80 TFEU; it can be traced back to a proposal by the former Italian Foreign Minister Fini according to the draft formulations by the Convention Presidium, Doc. CONV 614/03 of 14 March 2003, p. 25. 134 Cf. the Hague Programme (OJ 2005 C 53/1), p. 3; and the Stockholm Programme (OJ 2010 C 115/1), p. 32–33. 135 See Article 122(1) TFEU, Article 194(1) TFEU, and Article 222 TFEU. 136 See Hansen, ‘Making Cooperation Work’, in: ibid./Koehler/Money (eds), Migration, Nation States, and International Cooperation (Routledge, 2011), p. 14–30; and Warner, ‘Dublin Regulation and Boat Arrivals’, in: Snyder/Thym (Hrsg.), Europe – A Continent of Immigration? (Bruylant, 2011), p. 165–196. 137 See Article 63(2)(b) EC Treaty as amended by the Treaty of Amsterdam (OJ 1997 C 340/173). 138 See also Peers, EU Justice, p. 311; and Weiß, Article 80 TFEU, para 3. 139 In contrast to the previous Treaty provision, ibid., Article 80 TFEU is not confined to asylum policy thus embracing Article 77 and 79 TFEU as well; see also Monar, ‘Die Vertragsreformen von Lissabon in den Bereichen Inneres und Justiz’, Integration 2008, p. 379, 386–387.

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sharing.140 There is, in regular circumstances at least, no precise judiciable standards obliging the EU institutions to opt for a specific solution, although they are bound by the abstract legal obligation to promote solidarity and burden sharing in the realisation of the area of freedom, security and justice. In practice, EU institutions may opt for and have established various forms of 44 financial, logistical, operative or legislative support. While some of these instruments concern general questions, since they are meant, for instance, to enhance the ability of the Member States to apply the EU asylum acquis effectively (e. g. training tools for judges and civil servants established by EASO), others relate to specific scenarios of support for one or several Member States with difficulties (e. g. Rapid Border Intervention Teams in the context of FRONTEX). Legislative support may include, by way of example, a relocation scheme for asylum seekers (see above MN 28, 36) or the introduction of visa requirements when one or several Member States are faced with an increase of illegal entries from certain third state (see Thym, Legal Framework for EU Immigration Policy, MN 10). Finally, the wording of Article 80 TFEU emphasises that the EU institutions can have recourse to financial assistance in order to enhance solidarity within the CEAS, and a considerable amount of money is distributed among Member States by the Commission for external border controls and visas as well as asylum, migration and integration purposes.141

IV. International Law and Human Rights EU immigration and asylum law is firmly embedded in the constitutional framework 45 of the EU Treaties, including human rights. From a doctrinal perspective, the rights and principles enshrined in the Charter of Fundamental Rights serve as the primary yardstick for the judicial review of EU legislation, both in situations where its validity is at stake or where it is interpreted in conformity with human rights. While the EU institutions must respect the Charter in all their activities, the Member States are bound only when implementing Union law (see Hailbronner/Thym, Constitutional Framework, MN 47–48). In specific scenarios, the interpretation of the EU Charter by the ECJ typically follows the case law of the ECtHR on the ECHR, although the ECJ is not formally obliged to follow the Strasbourg court (see ibid., MN 51). In contrast to international human rights law and the Geneva Convention, international agreements of the Member States to which the EU has not formally acceded do not form part of the EU legal order as a matter of principle (see ibid., MN 58–59). On the basis of these general principles, this section concentrates on the human rights dimension of EU instruments on asylum discussed in this chapter. In practice, the adjudication of international legal standards in the field of asylum, 46 both under the Geneva Convention and international human rights law, regularly concerns not only abstract legal principles but also the assessment of the factual situation in diverse countries of origin or transit. If we want the rules building the CEAS to be applied coherently across the EU (see above MN 6), uniform standards across Europe should be strived for. Unfortunately, however, there seems to exist a structural deficit of the European court architecture in asylum matters. Firstly, the ECJ is bound to limit itself, in the preliminary reference procedure at least, to questions of abstract legal interpretation and does not regularly evaluate the situation in specific 140 Similarly, see Rossi, ‘Article 80 TFEU paras 1 and 4; and Geiger/Kahn/Kotzur, European Union Treaties (C.H. Beck/Hart, 2014), Article 80 TFEU paras 1, 4. 141 See, for border controls and visas, Regulation (EU) No 515/2014 (OJ 2014 L 150/143), and, for the Asylum, Migration and Integration Fund, Regulation (EU) No 516/2014 (OJ 2014 L 150/168).

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countries of origin or transit.142 Secondly, the ECtHR can also consider the facts, but does so only after the exhaustion of local remedies,143 and is limited, moreover, to the interpretation of the ECHR which cannot automatically be extended to statutory EU rules on asylum (see above MN 21). Thirdly, while national authorities may share information on countries of origin with the active support of EASO, this cannot bind the judges who are independent. This implies that national courts of last instance retain a principled responsibility to apply the EU asylum acquis coherently to specific scenarios, among others by means of horizontal cross-fertilisation by taking note of the position of other national courts.144

1. Geneva Convention 47

The Geneva Convention, together with the 1967 Protocol, constitutes the centrepiece of international refugee law and serves as a central point of reference for the EU asylum acquis. That being said, it should be noted that the European Union has not – unlike the Member States – formally acceded to the Geneva Convention. EU primary law may encompass an (exclusive) external Union competence for most matters covered by the Convention today,145 but the Geneva Convention to this date does not allow for the accession of the EU.146 The option of a unilateral declaration by the EU to commit itself formally on the international plane to adhere to the Geneva Convention has not so far been realised;147 neither has the EU assumed the responsibilities of the Member States as state parties by way of functional succession, following the earlier example of the GATT.148 This implies that as a matter of public international law the EU is bound, in line with settled ECJ case law, only by those provisions of the Geneva Convention that correspond to obligations under customary international law (see Hailbronner/Thym, Constitutional Framework, MN 58). Although the EU has not acceded to the Geneva Convention, Member States are under an obligation to represent the EU’s position in treaty bodies.149 What is more, the EU could adopt formal decisions under Arti142 See ECJ, Dumon & Froment, C-235/95, EU:C:1998:365, para 25, although the ECJ often hints at how it would resolve the individual case; arguably, the ECJ lacks the procedural devices necessary to gather information on specific countries of origin or transit; see also Costello, Human Rights (forthcoming). 143 See Storey, Briefing Note, p. 329–337; in practice, the ECtHR tends towards a mixed approach combining its own assessment with a referral to domestic courts; for more comments, see Storey, Briefing Note, p. 344–346; Blake, ‘Luxembourg, Strasbourg and the National Court’, IJRL 25 (2013), p. 349 (363– 368); and Costello, Human Rights (forthcoming); Protocol No. 16 to the ECHR, which has not yet entered into force, will not change the setting, since the reference procedure for domestic courts of last instance will, like in the case of the ECJ, concern questions of abstract legal interpretation only, not the assessment of individual scenarios. 144 The EU Asylum Law Database may support horizontal cross-fertilisation; see online at http:// www.asylumlawdatabase.eu/en [last accessed 1 November 2015]. 145 In accordance with settled ECJ case law, codified in Article 3(2) TFEU, the EU obtained an exclusive external treaty-making competence for most aspects of future agreements (or amendments of existing agreements) on asylum after the adoption of the former Asylum Qualification Directive 2004/83/EC. 146 Only states may accede in accordance with Article 39(2) GC; the Stockholm Programme (OJ 2010 C 115/1), p. 32 had called on the EU institutions to seek accession to the Convention and the 1967 Protocol, but no step seems to have been taken in this direction. 147 Similar questions have been discussed in relation to international humanitarian law in the context of military and civil CSDP operations; cf. Tsagourias, ‘EU Peacekeeping Operations: Legal and Theoretical Issues’, in: Trybus/White (eds), European Security Law (OUP, 2007), p. 102–133; the internal commitment to abide by the Geneva Convention in Article 78(1) TFEU must be distinguished from a commitment at international level. 148 This was explicitly confirmed by ECJ, Qurbani, C-481/13, EU:C:2014:2101, para 23; see also Battjes, European Asylum, p. 79–80. 149 Cf ECJ, Commission vs. Greece, C-45/07, EU:C:2009:81, paras 30–31 with regard to the International Maritime Organisation IMO.

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cle 218(9) TFEU determining the position of the Member States in international treaty bodies or the UNHCR Executive Committee.150 Notwithstanding the absence of an international obligation to abide by the Geneva 48 Convention and the 1967 Protocol, the EU has committed itself unequivocally in Article 78(1) TFEU to respect its provisions as a matter of Union law when establishing the Common European Asylum System (see above MN 8). This internal commitment prevents a mismatch between the obligations of the Member States under supranational Union law and public international law, since the ECJ is bound to respect the Geneva Convention in the interpretation of the EU asylum acquis (see above MN 10). Given that the EU has not signed up the Geneva Convention under public international law, the ECJ has no comprehensive jurisdiction to interpret the Geneva Convention in situations not pertaining directly to rules in EU legislation, including in situations of Member State discretion.151 In such (rare) scenarios, national courts remain free to interpret the Geneva Convention autonomously without a preliminary reference to the ECJ, and the legal effects of the Geneva Convention will follow the rules of the domestic law order in question. Like in the case of other international agreements, the ECJ and national courts should 49 recognise that the Geneva Convention must be interpreted in line with the established principles of public international law as reaffirmed by the Vienna Convention on the Law of Treaties (see Hailbronner/Thym, Constitutional Framework, MN 57). Distinct principles for the interpretation of Union law (see ibid., MN 10–27) do not extend to the Geneva Convention. This implies that, in accordance with Article 31(3) Vienna Convention, state practice constitutes one point of reference for the interpretation of the Geneva Convention, together with other interpretative principles such as the effective achievement of the Convention’s purposes.152 The same applies to the position of the UNHCR, in particular its handbooks and commentaries (see below MN 53), although they cannot be qualified as being legally binding in themselves, since UNHCR does not hold the power to interpret the Geneva Convention authoritatively.153 In the absence of an institution that may provide for the authoritative interpretation of the Geneva Convention as a matter of international law, academic contributions should discuss the suitability of different interpretative standards and the legitimacy of diverging positions openly instead of assuming single-handedly that there is only one convincing interpretation available. For the interpretation of the Geneva Convention, a transnational dialogue among 50 courts can be an important instrument, both within and beyond the European Union.154 The ECJ plays a central role in this respect, since its position on the interpretation of the Geneva Convention has obtained great visibility across the world in recent years,155 150 Cf ECJ, Germany vs. Council, C-399/12, EU:C:2014:2258, paras 48–68; the situation applies to any international organisation, treaty body or other forum dealing with areas covered by exclusive external EU competences, also with regard to decisions that are, like in the case cited, not legally binding. 151 See ECJ, Qurbani, C-481/13, EU:C:2014:2101, para 20–28. 152 For a progressive position, which partly suggests to exempt the Geneva Convention from the established principles for international treaty interpretation, see Hathaway, Rights of Refugees, p. 48–74. 153 See Hathaway, Rights of Refugees, p. 54; and Recital 22 Asylum Qualification Directive 2011/95/EU, whose wording remains noticeably open-ended; an example of divergent interpretation between UNHCR and the ECJ is the definition of ‘memberships of a particular social group’ in Article 1A(1)(2) GC and Article 10(1)(d) Directive 2011/95/EU; see Do¨rig, Asylum Qualification Directive, Article 10 MN 13–16. 154 See the contributions to Goodwin-Gill/Lambert (eds), The Limits of Transnational Law. Refugee Law, Policy Harmonization and Judicial Dialogue in the European Union (CUP, 2010). 155 See Drywood, Who’s in, p. 1115–1123; and Lambert, ‘Transnational Law and Refugee Identity: The Worldwide Effect of European Norms’, in: Kneebone/Stevens/Baldassar (eds), Refugee Protection and the Role of Law (Routledge, 2014), p. 203–214.

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thereby complementing the existing dialogue among courts from Commonwealth countries and the US, which had dominated transnational debates until recently. This newly found prominence of ECJ judgments on the Geneva Convention does not mean that national courts have no role to play. On the contrary, the abstract character of many ECJ judgments and the significance of country-specific assessments (see above MN 46) implies that the position of domestic courts which – unlike the ECJ – often have a specialisation in asylum law, can be an important factor for the interpretation of the Geneva Convention.156 National courts should actively reflect the position of their peers in other Member States, thereby enhancing the coherence of the CEAS and contributing to the transnational visibility of the European position on the interpretation of the Geneva Convention. 51 Many provisions in the Geneva Convention contain vaguely formulated rules or expressly provide for discretion on the side of the contracting parties. In such scenarios, abstract obligations under the Geneva Convention can be complemented with more detailed statutory rules in EU legislation, such as the Asylum Qualification Directive 2011/95/EU (see above MN 15). In this respect, EU legislation contributes to a panEuropean understanding of the Geneva Convention which is binding on the Member States as a matter of Union law and which may, particularly through ECJ judgments, have an impact on judicial practices worldwide (see above MN 50). It is discussed elsewhere whether and, if so, to what extent the Geneva Convention embraces, from today’s perspective, an individual right of asylum seekers not to be rejected at the border (see Thym, Legal Framework for Entry and Border Controls, MN 40) and commands for extraterritorial effects, in particular with regard to border controls on the high seas (see Thym, ibid. 36). 52 The Geneva Convention does not contain rules on procedures. Nonetheless, general principles on a fair asylum procedure have been developed in the application of the Convention. They require state parties, in line with the principle of good faith,157 to institute ‘fair and effective’ procedures in order to determine who is entitled to the guarantees of the Convention.158 This position has found general acceptance, in particular with regard to the principle of non-refoulement, but it can be difficult to determine the precise scope of corresponding obligations at the international level in specific scenarios (see below MN 54). State practice, including court judgments, are the main source to determine whether such general principles have evolved,159 although other interpretative standards must also be considered (see above MN 49). Moreover, many international and non-governmental agencies have in recent years formulated general principles on asylum procedures, which often make an effort to promote the progressive evolution of the law. 53 Prominent among them is the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status of 1979 and a series of Executive Committee Recommendations on the determination of refugee status, including problems arising from manifestly unfounded or abusive applications.160 In 2002, the International Law Association passed a declaration on international minimum standards based on a report by its Committee on Refugee Procedures, which distinguishes between general 156 See, by way of example, Do ¨ rig, ‘German Courts and their Understanding of the Common European Asylum System’, IJRL 25 (2013), p. 768–778. 157 Cf Article 26 Vienne Convention on the Law of Treaties. 158 See Vedsted-Hansen, in: Chetail/Baulez (eds), Research Handbook, p. 439–458. 159 In practice, however, there is usually not clearly identifiable and consistent state practice. 160 See the informal UNHCR Manual on Refugee Protection and the European Convention of Human Rights, April 2003, available online at http://www.unhcr.org/3ead2a814.pdf [last accessed 1 November 2015].

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procedural standards, rules for the hearing and the determination of claims as well as standards on appeals and reviews in situations of a real risk of persecution or harm.161 It should be noted that none of these recommendations, resolutions, conclusions or decisions constitutes an authoritative source of interpretation (see above MN 49). Their non-binding character frequently follows from the title or wording, the lack of a competence of the respective body to adopt binding rules or the circumstances of their elaboration. The House of Lords explicitly noted, in a judgment of 2003, that the opinion of non-governmental or international bodies or a consensus of the academic literature cannot constitute customary international law unless it was accepted by the states as binding under international law.162 In the application of international procedural standards, fairness generally mandates 54 a procedure providing for a reasonable chance to enforce a claim to protection. Applicants must be given an opportunity to present their claim by means of an application to asylum and to pursue it throughout the procedure. Efficiency has different connotations. From the point of view of the applicant, it means that the procedural rights and the legal status should allow them to enforce their claim within a reasonable period of time. At the same time, however, efficiency also relates to the public interest if asylum procedures are required to be swift in order to save scarce public ressources and to prevent asylum procedures from becoming a back door to illegal immigration. In sum, the concept of ‘fair and efficient’ procedures embraces a large discretion on the side of states within the (rather broad) international normative limits described above.163 This background explains the great practical relevance of the Asylum Procedure Directive 2013/32/EU, which lays down detailed prescriptions for Member States and, moreover, must be interpreted in the line with the procedural human rights standards in the EU Charter of Fundamental Rights (see Hailbronner/ Thym, Constitutional Framework, MN 34–47).

2. European Convention on Human Rights On the basis of the general principles guiding compliance of EU legislation with 55 human rights (see above MN 45), three provisions of the ECHR are particularly relevant for immigration and asylum policy. While Article 8 ECHR is activated by migrants against European countries they are living in to protect their private or family life (see Thym, Legal Framework for EU Immigration Law, MN 53–55), Article 3 ECHR serves as a central guarantee against mistreatment in countries of origin or transit from which European states are asked to provide shelter (see below MN 57–58), and Article 13 ECHR guides procedural and judicial decision-making (see below MN 60). On this basis, the ECtHR effectively turned the European Convention into an instrument of refugee protection, although the state parties had originally deliberately decided not to integrate a right to asylum in the ECHR.164 In the early 1990s, the ECtHR nonetheless started to activate Article 3 ECHR as an additional instrument of refugee 161 The report was elaborated by the Committee on Refugee Procedures chaired by Kay Hailbronner and had been drafted by Guy Goodwin-Gill; it is available online at http://www.ila-hq.org/en/committees/ index.cfm/cid/27 [last accessed 1 November 2015]. 162 Lord Bingham of Cornhill per House of Lords, judgment of 9 December 2004, R v. Immigration Officer at Prague Airport and another (Respondents) ex parte European Roma Rights Centre and others (Appellants) [2004] UKHL 55, para 27. 163 See also Hailbronner, Immigration and Asylum, p. 44; and Battjes, European Asylum, p. 102. 164 They considered the Geneva Convention to be the appropriate benchmark in this respect; see Uibopou, ‘Der Schutz des Flu¨chtlings im Rahmen des Europarats’, Archiv des Vo¨lkerrechts 21 (1983), p. 60, 61–64; and European Commission of Human Rights, Decision of 26 March 1963, No. 1802/62, X. vs. Germany, Yearbook of the European Convention on Human Rights 6 (1963), p. 462, 478.

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protection and extended it beyond the reach of the Geneva Convention.165 The ECHR not only protects individuals against persecution, but may cover other threats to life resulting from indiscriminate violence or, in exceptional circumstances, socioeconomic living conditions in countries of origin (see below MN 57–58). In short, Article 3 ECHR has been turned into an instrument for refugee protection also in situations not covered by the Geneva Convention ratione materiae. 56 In contrast to the Geneva Convention, the ECHR establishes an obligatory judicial system providing for authoritative interpretation and enabling anyone to seek redress against the alleged violation of Convention rights before the ECtHR in Strasbourg. Indeed, a great number of applicants have seized the ECtHR in asylum matters in recent years, thereby stretching the institutional ressources of the Court system166 and motivating the latter to gradually move towards an informal lead case system (see above MN 46) which exemplarily analyses the situation in specific countries of origin or transit instead of focusing on the individual case.167 Although the EU has not yet formally acceded to the European Convention, the parallel interpretation of the EU Charter in regular circumstances guarantees a level playing field of human rights protection in Europe even if the position of the ECJ prevails over the interpretation of the ECtHR for all matters relating to EU law in a (rare) case of conflict between the two courts (see Hailbronner/Thym, Constitutional Framework, MN 51). Notwithstanding the widespread overlap of the European Convention with the Geneva Convention and the EU asylum acquis, the different sources must be distinguished doctrinally not least because the procedural means of administrative and judicial enforcement can differ. The Asylum Procedure Directive 2011/32/EU in particular covers applications for international protection only and therefore does not encompass asylum claims based on the ECHR whenever the latter extends beyond the Geneva Convention or EU-style subsidiary protection (see above MN 21).168 57 Over the past 25 years, the ECtHR has developed extensive criteria for limiting state discretion regarding extradition or expulsion whenever the transferee faces a real risk of torture or inhuman or degrading treatment abroad. Since the Court considers Article 3 to enshrine one of the most fundamental values of democratic society, it construes the provision as an absolute guarantee from which no derogation is possible and which can therefore also cover those who are excluded from refugee status under the exclusion provisions in the Geneva Convention.169 The ECtHR accepts, however, that the ECHR does not stand in the way of return whenever the country of destination provides for diplomatic assurances that must include, besides abstract obligations, assurances and 165 For an overview, see Bossuyt, Strasbourg et les demandeurs d’asile (Bruylant, 2010), p. 7–48; Wouters, International Legal Standards for the Protection from Refoulement (Intersentia, 2009), p. 187– 358; and Zimmermann, ‘Ausweisungsschutz’, in: Do¨rr/Grote/Marauhn (eds.), Konkordanzkommentar EMRK/GG, 2nd edn (Mohr Siebeck, 2013), ch. 27. 166 See the former President Wildhaber, ‘Ein U ¨ berdenken des Zustands und der Zukunft des Europa¨ischen Gerichtshofs fu¨r Menschenrechte’, Europa¨ische Grundrechte-Zeitschrift 2009, p. 541–553; and, more generally, Greer, The European Convention on Human Rights (CUP, 2006), chs 2–3. 167 In asylum matters, such a system has not been formalised and it can be difficult, therefore, to discern a clear pattern in the case law, which often shifts between abstract considerations and the individual case; in practice, judgments of the Grand Chamber are particularly relevant; see Thym, ‘Respect for Private and Family Life under Art. 8 ECHR in Immigration Cases’, ICLQ 57 (2008), p. 87, 102–111. 168 Member States may decide voluntarily, however, to apply the Directive to other claims to protection in accordance with Article 3(3) Asylum Procedure Directive 2013/32/EU. 169 See 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 vs. Austria, para 41 explicitly confirming that the ECHR is wider than the GC; and ECtHR, judgment of 28 February 2008 (GC), No. 37201/06, Saadi v. Italy, paras 124–127 in contrast, in particular, to Article 1F GC.

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procedures guaranteeing for their actual implementation.170 In contrast to EU legislation and the Geneva Convention, the ECHR is concerned primarily with the prevention of refoulement and does not encompass a set of guarantees regulating the legal status of asylum seekers during the asylum procedure or after recognition. The ECtHR assumes, controversially, that living conditions abroad after expulsion 58 may amount, even in the absence of persecution, to a violation of Article 3 ECHR if the transferee had to live in extreme poverty or will be subject to excessive cases of indiscriminate violence which is not directed against a specific social group but defines the situation in the country concerned more generally. After a series of far-reaching judgments in the late 1990s, the ECtHR has adopted a more careful position in recent years by 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.’171 In a number of follow-up rulings, it has carefully applied these standards to different countries of origin.172 Along similar lines, the ECtHR has found that socioeconomic living conditions, in particular the lack of medical care, can be covered by Article 3 ECHR in ‘very exceptional circumstances,’ for instance if the applicant effectively faces imminent death upon return.173 The Grand Chamber confirmed this position in a judgment of principle, because 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.174 Against this background, it is problematic that the ECtHR has applied stricter standards to European countries regarding Dublin transfers (see above MN 29).175 In relation to third states, the EU legislature and the ECJ adopted a somewhat critical perspective when they designed Article 15 Asylum Qualification Directive 2011/95/EU to be narrower than Article 3 ECHR (see above MN 21). Besides Article 3 ECHR, the ECtHR assumes that the violation of other human rights 59 in countries of origin can also stand in the way of deportation or extradition. However, in such scenarios, it insists on a particularly strict assessment, thereby effectively 170 For a list of relevant factors, see 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 (see above MN 29) are less strict, mirroring the availability of supervision and redress mechanisms in all European states, including before the ECtHR. 171 ECtHR, judgment of 17 July 2008, No. 25904/07, NA v. the United Kingdom, paras 114–115; more open formulations of earlier rulings include ECtHR, judgment of 17 December 1996, No. 25964/94, Ahmed vs. Austria; for a critique of the case law, see Hailbronner, ‘Artikel 3 EMRK – ein neues ¨ ffentliche Verwaltung 1999, p. 617–624. europa¨isches Konzept der Schutzgewa¨hrung?’, Die O 172 Cf. the rejection of a real risk of a violation with regard to some part of Somalia in ECtHR, judgment of 28 June 2011, Nos. 8319/07 & 11449/07, Sufi & Elmi v. the United Kingdom, paras 212 et seq.; and for Iraq by ECtHR, judgment of 27 June 2013, No. 71680/10, A.G.A. M. v. Sweden, paras 29 et seq. (the Grand Chamber accepted the outcome by rejecting a review). 173 See, for an AIDS patient in ‘advanced stages of a terminal and incurable illness’ (para 51), ECtHR, judgment of 2 May 1997, No. 30240/96, D. v. the United Kingdom, para 52. 174 ECtHR, judgment of 27 May 2008 (GC), No. 26565/05, N. v. the United Kingdom, para 42; for the irrelevance of disparities of living standards, see para 44; for an overview of the case law, see Hailbronner, ‘Aufnahme von Flu¨chtlingen aus La¨ndern mit preka¨ren Lebensbedingungen und Bu¨rgerkrieg’, Zeitschrift fu¨r Ausla¨nderrecht 2014, p. 306–312. 175 Cf. ECtHR, judgment of 21 January 2011 (GC), No. 30696/09, M.S.S. v. Belgium & Greece, paras 235–264; and ECtHR, judgment of 4 November 2014 (GC), No. 29217/12, Tarakhel v. Switzerland, paras 93–99; it seems to us that the ECtHR wrongly confuses the interpretation of human rights with statutory obligations under the Asylum Reception Conditions Directive 2013/33/EU, see Thym, ‘Menschenrechtliche Feinjustierung des Dublin-Systems zur Asylzusta¨ndigkeitsabgrenzung’, Zeitschrift fu¨r Ausla¨nderrecht 2011, p. 368, 369–371.

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establishing distinctive standards for internal and removal cases.176 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 ‘flagrant denial’ of other human rights – a threshold which is higher than the intraEuropean benchmark and will be met in exceptional circumstances only. In practice, it has found that extreme scenarios of unfair judicial procedures or detention can give rise to an issue under Articles 5 and 6 ECHR,177 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 Thym, Legal Framework for Entry and Border Controls, MN 38–39). 60 The ECHR has gained particular relevance in procedural issues, 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 to immigration and asylum cases due to their non-civil and non-criminal character,178 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 Hailbronner/Thym, Constitutional Framework, MN 37), a prima 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.179 Once this condition is met, states must establish an effective remedy in relation to which the contracting parties are afforded some discretion.180 More specifically, the ECtHR has held that the remedy must be available in practice and provide for a prompt response as well as an independent and rigorous scrutiny.181 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.182

3. Other International Agreements 61

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 (see Hailbronner/ Thym, Constitutional Framework, MN 54). In practice, the Convention on the Rights of the Child and the UN and the European conventions against torture have gained some relevance in asylum matters in the EU context (see ibid.), since they complement the guarantees under the ECHR with sector-specific non-refoulement obligations183 or, 176 See also Costello/Mouzourakis, ‘Reflections on Reading Tarakhel’, Asiel & Migrantenrecht 2014, p. 404, 406–407. 177 For a summary of the Court’s position, see ECtHR, judgment of 17 January 2012, No. 8139/09, Othman (Abu Qatada) v. the United Kingdom, paras 231–235, 258–262. 178 ECtHR, judgment of 5 Oct. 2000 (GC), No. 39652/98, Maaouia v. France, paras 32–41. 179 Settled case law, see, by way of example, ECtHR, judgment of 21 January 2011 (GC), No. 30696/09, M.S.S. v. Belgium & Greece, para 288. 180 See ECtHR, judgment of 28 October 1999, No. 40035/98, Jabari v. Turkey, para 48. 181 See the summary of the case law in ECtHR, judgment of 21 January 2011 (GC), No. 30696/09, M.S.S. v. Belgium & Greece, paras 283–293. 182 See ECtHR, judgment of 23 Feb 2012 (GC), No. 27765/09, 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 court has the option to decide before removal; a final decision of a court of last instance is not required. 183 See Wouters, International Legal Standards for the Protection from Refoulement (Intersentia, 2009), ch. 5.

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in the case of the rights of the child, may influence the asylum procedure.184 Whenever these issues are relevant, they are discussed in the chapter commenting on a specific legal instrument.

4. Charter of Fundamental Rights In accordance with Article 52(3) of the Charter, Articles 4, 7 and 19 EU Charter must 62 be interpreted in line with established ECtHR case law (see above MN 56). This entails that Article 4 of the Charter should be interpreted in line with Article 3 ECHR185 and that the limitations in Article 52(1) of the Charter cannot be applied to a human right that the ECHR considers to be absolute, such as Article 3 ECHR (see above MN 57). Guarantees for administrative and judicial proceedings under Articles 41–42, 47 of the Charter extend to asylum law and can be particularly relevant, since they reach further than the ECHR (Hailbronner/Thym, Constitutional Framework, MN 37). Moreover, Article 18 of the Charter may have a bearing on EU asylum policy, since 63 it guarantees ‘[t]he right to asylum … with due regard for the rules of the Geneva Convention … and in accordance with the [TFEU].’ The precise bearing of that provision is not immediately clear given that the wording deliberately evades the designation of an individual right by referring to the guarantees under the Geneva Convention and the EU Treaties in an abstract manner.186 In particular, Article 18 of the Charter does not state, in contrast to the Universal Declaration of Human Rights, that ‘[e]veryone has the right to seek asylum.’187 Moreover, the drafting history shows that the abstract wording was a deliberate choice reflecting a concern among the members of the Convention drafting the Charter about the implications of an individual right to asylum beyond the confines of the Geneva Convention.188 Notwithstanding these arguments, various authors sustain an individualised interpretation of the provision.189 In practice, however, these differences have little bearing, since the Asylum Qualification Directive 2011/95/EU establishes an individual right to have asylum claims considered with regard to refugee status and subsidiary protection (while Article 18 of the Charter relates to the former only). 184

See Smyth, European Asylum Law and the Rights of the Child (Routledge, 2014). As confirmed, at least in principle, by ECJ, N.S. et al., C-411/10 & C-493/10, EU:C:2011:865, paras 86–88 and 109–114 when judges rejected a higher level of protection under the EU Charter. 186 The reference to the TFEU supports the argument that the provision may constitute a ‘principle’ which, in line with Article 52(5) of the Charter, cannot be directly applied but may influence the interpretation of secondary legislation; such interpretation could go beyond a codification of the Geneva Convention due to its impact upon the interpretation of secondary legislation, see Fro¨hlich, Asylrecht, p. 184 et seq., 328–331; ECJ, N.S. et al., C-411/10 & C-493/10, EU:C:2011:865, para 75 can be read to confirm this interpretation, thereby rejecting an individualised interpretation. 187 Article 4(1) UDHR. 188 See Jochum, ‘Artikel 18 GRC – Asylrecht’, in: Tettinger/Stern (eds), Europa ¨ ische GrundrechteCharta – Ko¨lner Gemeinschafts-Kommentar (C.H. Beck, 2006), p. 453–458; and Galetta, ‘The European Asylum Policy: Myth and Reality’, in: Birkinshaw/Varney (eds), The European Union Legal Order after Lisbon (Kluwer, 2010), p. 213, 219. 189 See 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 Groß, ‘Migrationsrelevante Freiheitsrechte der EU-Grundrechtecharta’, Zeitschrift fu¨r Ausla¨nderrecht 2013, p. 106–110. 185

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II. 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 Commission Decision 2003/690/EC of 2 October 2003 on the request by Ireland to accept Council Directive 2001/55/EC 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 (notified under document number C (2003) 3428) Official Journal L 251, 03/10/2003, p. 23 Selected Bibliography: Arenas, ‘The Concept of ‘Mass Influx of Displaced Persons’ in the European Directive Establishing the Temporary Protection System’, EJML 7 (2005), p. 435; Boutruche-Zarevac, La protection temporaire des personnnes de´place´es en droit de l’UE: un nouveau mode`le en cas d’afflux massifs? (Editions Universitaires Europe´ennes, 2012); Bunyan (ed.), Key texts on Justice and Home Affairs in the European Union, Volume 1 (1976–1993) – From Trevi to Maastricht, Statewatch, London 1997; Durieux/McAdam, ‘Non-Refoulement through Time: The Case for a Derogation Clause to the Refugee Convention in Mass Influx Emergencies’, IJRL 16 (2004), p. 4; 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, EUI Working Paper RSCAS 2013/89; Fitzpatrick, ‘Temporary Protection of Refugees: Elements of a Formalized Regime’, AJIL 94 (2000), p. 279; Hailbronner, ‘Rechtsfragen der Aufnahme von ‘Gewaltflu¨chtlingen’ in Westeuropa – am Beispiel Jugoslawien’, Schweizerische Zeitschrift fu¨r internationales und europa¨isches Recht 3 (1993), p. 517; Hailbronner, ‘European Immigration and Asylum Law Under the Amsterdam Treaty’, CMLR 35 (1998), p. 1047; Hathaway/Neve, ‘Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection’, Harvard Human Rights Journal 10 (1997), p. 115; Ineli-Ciger, ‘Implications of the New Turkish Law on Foreigners and International Protection and Regulation no. 29153 on Temporary Protection for Syrians Seeking Protection in Turkey’, Oxford Monitor of Forced Migration 4 (2014), p. 28; Ka¨lin, ‘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; Kerber, ‘Temporary Protection in the European Union: A Chronology’, Georgetown Immigration Law Journal 14 (1999), p. 35; Koser/Walsh/Black, ‘Temporary Protection and the Assisted Return of Refugees from the European Union’, IJRL 10 (1998), p. 444; Nascimbene/Di Pascale, ‘The ‘Arab Spring’ and the Extraordinary Influx of People who Arrived in Italy from North Africa’, EJML 13 (2011), p. 341; Noll/Gunneflo, Directive 2001/55 – Temporary Protection – Synthesis Report, Brussels, 2007 (Odysseus Study on the ‘Conformity Checking of the Transposition by Member States of 10 EC Directives in the Sector of Asylum and Immigration’); Schuck, ‘Refugee BurdenSharing: A Modest Proposal’, Yale Journal of International Law 22 (1997), p. 243; Tretter (ed.), ¨ sterreich, 2000). Temporary Protection fu¨r bosnische Flu¨chtlinge in Europa – La¨nderberichte (Verlag O

THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular point 2(a) and (b) of Article 63 thereof, Having regard to the proposal from the Commission(1) (1)

OJ C 311 E, 31.10.2000, p. 251.

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Having regard to the opinion of the European Parliament(2), Having regard to the opinion of the Economic and Social Committee(3), Having regard to the opinion of the Committee of the Regions(4), Whereas: (1) The preparation of a common policy on asylum, including common European arrangements for asylum, is a constituent part of the European Union’s objective of establishing progressively an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the European Union. (2) Cases of mass influx of displaced persons who cannot return to their country of origin have become more substantial in Europe in recent years. In these cases it may be necessary to set up exceptional schemes to offer them immediate temporary protection. (3) In the conclusions relating to persons displaced by the conflict in the former Yugoslavia adopted by the Ministers responsible for immigration at their meetings in London on 30 November and 1 December 1992 and Copenhagen on 1 and 2 June 1993, the Member States and the Community institutions expressed their concern at the situation of displaced persons. (4) On 25 September 1995 the Council adopted a Resolution on burden-sharing with regard to the admission and residence of displaced persons on a temporary basis(5), and, on 4 March 1996, adopted Decision 96/198/JHA on an alert and emergency procedure for burden-sharing with regard to the admission and residence of displaced persons on a temporary basis(6). (5) The Action Plan of the Council and the Commission of 3 December 1998(7) provides for the rapid adoption, in accordance with the Treaty of Amsterdam, of minimum standards for giving temporary protection to displaced persons from third countries who cannot return to their country of origin and of measures promoting a balance of effort between Member States in receiving and bearing the consequences of receiving displaced persons. (6) On 27 May 1999 the Council adopted conclusions on displaced persons from Kosovo. These conclusions call on the Commission and the Member States to learn the lessons of their response to the Kosovo crisis in order to establish the measures in accordance with the Treaty. (7) The European Council, at its special meeting in Tampere on 15 and 16 October 1999, acknowledged the need to reach agreement on the issue of temporary protection for displaced persons on the basis of solidarity between Member States. (8) It is therefore necessary to establish minimum standards for giving temporary protection in the event of a mass influx of displaced persons and to take measures to promote a balance of efforts between the Member States in receiving and bearing the consequences of receiving such persons. (9) Those standards and measures are linked and interdependent for reasons of effectiveness, coherence and solidarity and in order, in particular, to avert the risk of secondary movements. They should therefore be enacted in a single legal instrument. (10) This temporary protection should be compatible with the Member States’ international obligations as regards refugees. In particular, it must not prejudge the (2)

Opinion delivered on 13 March 2001 (not yet published in the Official Journal). OJ C 155, 29.5.2001, p. 21. (4) Opinion delivered on 13 June 2001 (not yet published in the Official Journal). (5) OJ C 262, 7.10.1995, p. 1. (6) OJ L 63, 13.3.1996, p. 10. (7) J C 19, 20.1.1999, p. 1. (3)

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recognition of refugee status pursuant to the Geneva Convention of 28 July 1951 on the status of refugees, as amended by the New York Protocol of 31 January 1967, ratified by all the Member States. (11) The mandate of the United Nations High Commissioner for Refugees regarding refugees and other persons in need of international protection should be respected, and effect should be given to Declaration No 17, annexed to the Final Act to the Treaty of Amsterdam, on Article 63 of the Treaty establishing the European Community which provides that consultations are to be established with the United Nations High Commissioner for Refugees and other relevant international organisations on matters relating to asylum policy. (12) It is in the very nature of minimum standards that Member States have the power to introduce or maintain more favourable provisions for persons enjoying temporary protection in the event of a mass influx of displaced persons. (13) Given the exceptional character of the provisions established by this Directive in order to deal with a mass influx or imminent mass influx of displaced persons from third countries who are unable to return to their country of origin, the protection offered should be of limited duration. (14) The existence of a mass influx of displaced persons should be established by a Council Decision, which should be binding in all Member States in relation to the displaced persons to whom the Decision applies. The conditions for the expiry of the Decision should also be established. (15) The Member States’ obligations as to the conditions of reception and residence of persons enjoying temporary protection in the event of a mass influx of displaced persons should be determined. These obligations should be fair and offer an adequate level of protection to those concerned. (16) With respect to the treatment of persons enjoying temporary protection under this Directive, the Member States are bound by obligations under instruments of international law to which they are party and which prohibit discrimination. (17) Member States should, in concert with the Commission, enforce adequate measures so that the processing of personal data respects the standard of protection of Directive 95/46/EC of the European Parliament and the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data(8). (18) Rules should be laid down to govern access to the asylum procedure in the context of temporary protection in the event of a mass influx of displaced persons, in conformity with the Member States’ international obligations and with the Treaty. (19) Provision should be made for principles and measures governing the return to the country of origin and the measures to be taken by Member States in respect of persons whose temporary protection has ended. (20) Provision should be made for a solidarity mechanism intended to contribute to the attainment of a balance of effort between Member States in receiving and bearing the consequences of receiving displaced persons in the event of a mass influx. The mechanism should consist of two components. The first is financial and the second concerns the actual reception of persons in the Member States. (21) The implementation of temporary protection should be accompanied by administrative cooperation between the Member States in liaison with the Commission. (22) It is necessary to determine criteria for the exclusion of certain persons from temporary protection in the event of a mass influx of displaced persons. (8)

OJ L 281, 23.11.1995, p. 31.

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(23) Since the objectives of the proposed action, namely to establish minimum standards for giving temporary protection in the event of a mass influx of displaced persons and measures promoting a balance of efforts between the Member States in receiving and bearing the consequences of receiving such persons, cannot be sufficiently attained by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives. (24) In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom gave notice, by letter of 27 September 2000, of its wish to take part in the adoption and application of this Directive. (25) Pursuant to Article 1 of the said Protocol, Ireland is not participating in the adoption of this Directive. Consequently and without prejudice to Article 4 of the aforementioned Protocol, the provisions of this Directive do not apply to Ireland. (26) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not participating in the adoption of this Directive, and is therefore not bound by it nor subject to its application, HAS ADOPTED THIS DIRECTIVE:

CHAPTER I General provisions Article 1 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 I. Introductory comments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. European Political Cooperation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Treaty of Maastricht . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Treaty of Amsterdam. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. The Kosovo crisis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Purpose of the Directive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Application of the Directive. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 7 8 9 12 13 14 15

I. Introductory comments Council Directive 2001/55/EC of 20 July 2001 ‘on minimum standards for giving 1 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 Skordas

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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(1) and (2)(c) and (g) TFEU].1 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 solidarity Article 63(2)(b) TEC. The Directive forms an integral part of the Common European Asylum System.2 Article 1 circumscribes the scope of the Directive, and its terms are specified in other provisions: ‘minimum standards’ in Article 3(5), ‘temporary protection’ in Article 2(a), ‘mass influx’ in Article 2(d), and ‘displaced persons’ in Article 2(c) of the Directive. The ‘balance of effort’ is defined in the preamble,3 and its principles articulated in Article 24–26. There were five main areas of disagreement between the Member States: the duration of the temporary protection, the decision-making procedures (unanimity or qualified majority), access to asylum procedure during the temporary protection, family reunification and solidarity/burden-sharing. The system of the temporary protection has been transposed by the Member States,4 but by the end of 2015 it had not been implemented in any situation of mass influx. The temporary protection is not resettlement, which is defined by the EU as ‘the relocation of refugees, who are recognized by UNHCR as being in need of international protection, from the first country of asylum (mostly in the third world) to another country where they receive permanent protection’.5 Draft Article 23 of the Commission’s proposal linked the issue of resettlement with that of the temporary protection by stipulating that ‘the Member States shall take appropriate measures, in agreement with the persons concerned and in cooperation with the international organisations responsible, to facilitate any resettlement programmes which may be necessary’. However, this provision was deleted due to financial concerns of the Member States.6 Though it is often said that temporary protection is not a third form of protection for persons persecuted on political grounds, along with refugee status or subsidiary protection,7 it cannot be denied that the Directive creates a temporary legal status for the protected groups, reflecting rights and benefits on the persons concerned under European law.

II. Drafting history 7

The Temporary Protection Directive is the final product of discussions and deliberations between the Member States whose origins can be traced back to the beginning of 1 OJ 2001 L 212/12; Council doc. 10930/01. 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 the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament.’ 2 Tampere European Council of 15/16 October 1999, Presidency Conclusions, at 16. 3 ‘Provision should be made for a solidarity mechanism intended to contribute to the attainment of a balance of effort between Member States in receiving and bearing the consequences of receiving displaced persons in the event of a mass influx. The mechanism should consist of two components. The first is financial and the second concerns the actual reception of persons in the Member States’, see recital 20. 4 On transposition, see generally Noll/Gunneflo, Odysseus Synthesis Report. 5 Commission Staff Working Document, SEC(2009) 1128, p. 2. 6 See Council docs. 11650/00, p. 6 and 13958/00, p. 24. 7 See, for instance, Commission Proposal, COM(2000) 303, p. 3.

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the 1990s, and to the need for management of refugee flows from the former Yugoslavia – initially from Bosnia and Herzegovina, and later, at the end of the 1990s, from Kosovo. There are three different stages in the evolution of temporary protection, depending on the institutional framework of the decisions taken: European Political Cooperation (until 31 October 1993), Treaty of Maastricht (between 1 November 1993 until 30 April 1999), and Treaty of Amsterdam.

1. European Political Cooperation The Conclusion of the Meeting of the Immigration Ministers in London (30.11.– 8 1.12.1992) ‘on people displaced by the conflict in the former Yugoslavia’ underscored that ‘large scale and permanent movements’ outside the former Yugoslavia were likely to strengthen the policies of ethnic cleansing, and that ‘the burden of financing relief activities should be shared more equitably by the international community’. The Ministers were open, in principle, to the idea of giving temporary protection to vulnerable groups ‘in accordance with national possibilities and in the context of a coordinated action by all the Member States’. Relevant protection principles were also contained in the ‘Resolution on certain common guidelines as regards the admission of particularly vulnerable persons from the former Yugoslavia’ agreed at the Copenhagen Meeting of the Ministers of Immigration (1 June 1993),8 but no further common action was taken on this basis.

2. Treaty of Maastricht The Treaty of Maastricht9 raised asylum policy into an area of common interest and 9 created new legal bases for action by the Member States in the field of temporary protection (Article K.1, K.3 and K.8). The Council adopted the non-binding Resolution of 25 September 1995 ‘on burden-sharing with regard to the admission and residence of displaced persons on a temporary basis’,10 and the Decision 96/198/JHA of 4 March 1996 ‘on an alert and emergency procedure for burden-sharing with regard to the admission and residence of displaced persons on a temporary basis’;11 neither of these acts was applied. Furthermore, the Council agreed on Joint Actions 97/477/JHA of 22 July 199712 and 98/304/JHA of 27 April 1998 ‘concerning the financing of specific projects in favour of displaced persons who have found temporary protection in the Member States and asylum seekers’.13 Parallel to these acts, the Commission submitted proposals for the establishment of a 10 general legal regime on temporary protection and burden-sharing. On 5 March 1997, the Commission presented a proposal to the Council for a Joint Action based on Article K.3(2(b) ‘concerning temporary protection of displaced persons’.14 On 23 October 1997, the proposal was endorsed, subject to certain amendments, by the European Parliament.15 In response, and taking also into account some early deliberations of the Council, the Commission adopted an amended proposal for a Joint Action ‘concerning 8

See Bunyan, texts no. 36 and 37. Treaty on European Union of 7 February 1992, OJ 1992 C 224/1, entered into force on 1 November 1993. 10 OJ 1995 C 262/1. 11 OJ 1996 L 63/10. 12 OJ 1997 L 205/3. 13 OJ 1998 L 138/6. 14 COM(1997) 93. 15 EU Bulletin, no. 10 (1997), at 1.4.1., OJ 1997 C 339. See also European Parliament (EP), Report of the Committee on Civil Liberties and Internal Affairs of 25 September 1997, A4-0284/97. 9

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temporary protection of displaced persons’ and a proposal for a Joint Action ‘concerning solidarity in the admission and residence of beneficiaries of the temporary protection of displaced persons’ on 24 June 1998.16 Subject to new amendments, the EP approved the two proposals of the Commission on 20 November 1998.17 11 At the beginning of 1999, the German Presidency presented some new ideas and principles in order to overcome the deadlock that had appeared on the issue of solidarity in burden-sharing.18 On 1 May the Commission’s proposals lapsed, because the Amsterdam Treaty entered into force, and were withdrawn from the agenda.19

3. Treaty of Amsterdam 12

The Treaty of Amsterdam20 communitarized immigration and refugee law and inserted the relevant competences of the Community in Title IV TEC.21 The Commission resumed its efforts to draft a directive on temporary protection under the new institutional framework, and on 24 May 2000 they submitted a proposal for a Council Directive ‘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’.22 In the proposal, the Commission integrated its twin 1998 proposals on temporary protection and solidarity into a single legal instrument. Meanwhile, and a few days earlier, France had made some suggestions to the Council on the principles that should govern temporary protection.23 The draft was adopted on 20 June.24

4. The Kosovo crisis 13

During the Kosovo crisis, the Council affirmed that, though in principle protection should be afforded to civilians within the region, it was necessary to provide temporary protection in the Community, due to the growing number of displaced persons.25 The Council adopted a Joint Action on the basis of Article K.3 in order ‘to provide practical support in relation to the reception and voluntary repatriation of refugees, displaced persons and asylum seekers, including emergency assistance to persons who have fled as a result of recent events in Kosovo’.26 At the end of May 1999, the JHA Affairs Council formulated the broad principles that should guide the action of the Member States in providing temporary protection, without, however, introducing any scheme binding upon them.27 Therefore, the Member States offered temporary protection in the framework of the UNHCR Humanitarian Evacuation Program, and the experience they 16

COM(1998) 372; see also COM(1998) 372/2. OJ 1998 C 379/375 and C 379/380. See also EP, Report of the Committee on Civil Liberties and Internal Affairs of 3 November 1998, A4-0399/98. 18 Council doc. 5645/99; cf. also Council docs. 5682/1/99 and 7157/99. 19 Commission Communication, COM(2004) 542/3, p. 29. 20 Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Related Acts of 7 October 1997, OJ 1997 C 340/173, entered into force on 1 May 1999. 21 Hailbronner, CMLR 35 (1998), 1047–1067. 22 COM(2000) 303. 23 Council doc. 8510/00. 24 Council docs. 9540/01; 9540/01; 9541/01. 25 Council doc. 6877/09. 26 Council, Joint Action of the basis of Article K.3 of the Treaty on European Union, establishing projects and measures to provide practical support in relation to the reception and voluntary repatriation of refugees, displaced persons and asylum seekers, including emergency assistance to persons who have fled as a result of recent events in Kosovo of 26 April 1999, 1999/290/JHA, OJ 1992 L 114/2. 27 Council doc. 8654/99. 17

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gained28 would be used for the negotiation and drafting of the Temporary Protection Directive.

III. Purpose of the Directive The Directive has two main objectives: firstly, it establishes minimum standards for 14 the protection of displaced persons who have been victims of systematic or generalized violations of human rights, or have fled areas of armed conflict or endemic violence, and have arrived in the European Union, and secondly, it promotes the ‘balance of effort’ (solidarity, burden-sharing) between the Member States in receiving these persons.

IV. Application of the Directive The Directive has never been applied since it entered into force, despite the influx of 15 people from Iraq (2006–2008), North Africa (2011-), and Syria (2012-). In 2011, Italy formally requested the activation of the Directive for the management of the influx from Tunisia, but the Council disagreed on the basis that the conditions for the implementation of the Directive were not fulfilled.29 Over these years, protection was afforded in the Member States to persons who had fled as a result of armed conflict, deterioration of the security situation, or generalized human rights violations, in various forms: for instance, by granting refugee status, subsidiary status, or humanitarian status, or by resettlement or relocation. A variety of municipal law statutes was introduced in Member States with elements of temporary protection, humanitarian protection, and tolerated stay status (Duldung).30 Due to the duration of contemporary conflicts, it can be expected that persons admitted on a temporary basis or who were granted humanitarian status would ultimately resettle or relocate. The UK and German response to the Syrian refugee emergency demonstrates the 16 diversity of legal tools used by the Member States outside the area of EU harmonization. The UK introduced the Vulnerable Persons Relocation (VPR) scheme, providing protection to individuals from Syria who are victims of torture and violence, and women and children at risk, or in need of medical attention. The VPR beneficiaries are granted five-year humanitarian protection.31 The Home Office implemented the VPR by issuing a Ministerial Authorization granting entry clearance and enabling the preferential treatment of Syrians under the Equality Act.32 By the end of September 2015, 252 persons had been granted protection under the VPR. On 7 September 2015, the Prime Minister announced that up to 20 000 Syrians would be resettled to the UK from Turkey, Jordan and Lebanon by 2020.33 28

See the measures taken by the individual Member States, Council doc. 11808/99. Nascimbene/Di Pascale, EJML 13 (2011), p. 341, 346-348. 30 EMN, The different national practices, p. 12–3, 61–73, 108–110. 31 Oral Statement to Parliament by Home Secretary on Syrian Refugees, 29 January 2014, in: https:// www.gov.uk/government/speeches/oral-statement-by-the-home-secretary-on-syrian-refugees [last accessed 31 March 2015]; Written Statement to Parliament on Vulnerable Persons Relocation Scheme by Immigration and Security Minister, 25 March 2014, in: https://www.gov.uk/government/speeches/vulnerable-persons-relocation-scheme-for-syrian-nationals [last accessed 31 March 2015]. 32 Equality Act 2010 – Paragraph 17(4) of Schedule 3 to the Equality Act 2010, Ministerial Authorization of 13 March 2014. 33 House of Commons, Syrian Refugees and the UK, Briefing Paper No. 06805, 3 December 2015 (Melanie Gower). 29

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In the German practice, which is more closely linked to the Temporary Protection Directive, protection was granted to up to 20,000 Syrian refugees for the duration of the armed conflict by three consecutive decisions (Anordnungen) by the Federal Ministry of Interior of 30 May 2013 (5,000 persons),34 23 December 2013 (5,000 persons),35 and 18 July 2014 (10,000 persons).36 These decisions were further specified and implemented by the La¨nder. The protected persons are given a residence permit for an initial period of two years that can be extended. Three sets of criteria were introduced by the above decisions, which are broader in scope than those adopted by the UK: (i) family relations or other links to Germany, (ii) humanitarian criteria (children, women, medical needs, persecuted religious minorities), and (iii) capacity or skills of the protected individuals to contribute to the reconstruction of their country. 18 The three orders were based on Section 23(2) and (3) in connection with Section 24 of the Residence Act (Aufenthaltsgesetz).37 Under Section 23(2), foreigners may be admitted in the country ‘to safeguard special political interests of the Federal Republic’, whilst under Section 23 (3), Section 24 applies mutatis mutandis. Section 24 regulates the granting of residence for temporary protection on the basis of a resolution of the EU Council according to the Temporary Protection Directive. Paradoxically, the Temporary Protection Directive was among the legal bases of the acts that established the German system of protection of Syrian refugees, even though it was not applied by the EU Council in the above crisis. 19 In 2014, the Commission announced that ‘in order to enhance the preparedness of the Union to handle mass influxes, the existing framework on temporary protection should be evaluated, and if necessary, amended to make it a more practical and flexible instrument’.38 17

Article 2 For the purposes of this Directive: (a) “temporary protection” means a procedure of exceptional character to provide, in the event of a mass influx or imminent mass influx of displaced persons from third countries who are unable to return to their country of origin, immediate and temporary protection to such persons, in particular if there is also a risk that the asylum system will be unable to process this influx without adverse effects for its efficient operation, in the interests of the persons concerned and other persons requesting protection; (b) “Geneva Convention” means the Convention of 28 July 1951 relating to the status of refugees, as amended by the New York Protocol of 31 January 1967; (c) “displaced persons” means third-country nationals or stateless persons who have had to leave their country or region of origin, or have been evacuated, in particular in response to an appeal by international organisations, and are unable to return in 34 https://www.bmi.bund.de/SharedDocs/Downloads/DE/Themen/MigrationIntegration/AsylZuwanderung/aufnahmeanordnung.pdf?__blob=publicationFile [last accessed 31 March 2015]. 35 http://www.uno-fluechtlingshilfe.de/fileadmin/redaktion/PDF/23._Dezember.pdf [last accessed 31 March 2015]. 36 http://www.bmi.bund.de/SharedDocs/Downloads/DE/Themen/MigrationIntegration/AsylZuwanderung/aufnahmeanordnung-3.pdf?__blob=publicationFile [last accessed 31 March 2015]. 37 Gesetz u ¨ ber den Aufenthalt, die Erwerbsta¨tigkeit und die Integration von Ausla¨ndern im Bundesgebiet i.d.F der Bekanntmachung vom of 25 February 2008 (BGBl I S. 162), gea¨ndert durch Article 1 des Gesetzes vom 28. Oktober 2015 (BGBl I S. 1802). 38 Commission Communication, COM(2014) 154/7.

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safe and durable conditions because of the situation prevailing in that country, who may fall within the scope of Article 1A of the Geneva Convention or other international or national instruments giving international protection, in particular: (i) persons who have fled areas of armed conflict or endemic violence; (ii) persons at serious risk of, or who have been the victims of, systematic or generalised violations of their human rights; “mass influx” means arrival in the Community of a large number of displaced persons, who come from a specific country or geographical area, whether their arrival in the Community was spontaneous or aided, for example through an evacuation programme; “refugees” means third-country nationals or stateless persons within the meaning of Article 1A of the Geneva Convention; “unaccompanied minors” 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 for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person, or minors who are left unaccompanied after they have entered the territory of the Member States; “residence permit” means any permit or authorisation issued by the authorities of a Member State and taking the form provided for in that State’s legislation, allowing a third country national or a stateless person to reside on its territory; “sponsor” means a third-country national enjoying temporary protection in a Member State in accordance with a decision taken under Article 5 and who wants to be joined by members of his or her family. Content I. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Temporary protection (Article 2(a)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Geneva Convention (Article 2(b)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Displaced persons (Article 2(c)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Mass influx (Article 2(d)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Refugees and stateless persons (Article 2(e)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Unaccompanied minors (Article 2(f)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. Residence permit (Article 2(g)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. Sponsor (Article 2 (h)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 2 7 8 21 29 30 31 32

I. General remarks Article 2 contains definitions of the most important terms of the Directive. It aims to 1 ensure that these terms are interpreted in a harmonised manner by the national legislations and thus helps to apply the Directive consistently in the European legislator’s sense.

II. Definitions 1. Temporary protection (Article 2(a)) According to the Commission’s proposal, temporary protection was to be activated in 2 case of an actual mass influx, but not in anticipation thereof.39 During the Council’s 39 The initial formulation was the following: ‘temporary protection in the event of a mass influx’ means exceptional measures to provide, in the event of a mass influx of displaced persons from third countries (…)’, COM(2000) 303, p. 29.

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deliberations, Italy and the Netherlands proposed to add ‘a threat of mass influx’,40 while Germany put forward the term ‘imminent’ mass influx,41 which was accepted by the Member States.42 The mass influx is ‘imminent’ when there is a strong probability that a large number of displaced persons will arrive, but not when there is only a mere possibility, or speculation that this could happen.43 The ‘imminence’ criterion is preferable to the less specific ‘threat’, and indicates the temporal proximity of the expected inflow of persons, enabling the Council to take an informed decision based on facts. A second controversial point arose with regard to the question whether temporary protection should be provided only if there is a risk of malfunctioning of the asylum system of the Member States, or independently of that. Indeed, in case of mass influx the administrative capacities of the receiving country might come under considerable stress and face bottlenecks at least for some time. The Commission’s proposal stipulated that temporary protection should be afforded ‘where there is a risk that the asylum system will be unable to process this influx without adverse effects for its efficient operation, in the interests of the persons concerned and other persons requesting protection’.44 Some delegations opposed this concept and asked for this phrase to be deleted,45 while another delegation asked for the phrase to be maintained.46 Under the compromise formula of the final text (‘in particular if there is also a risk that the asylum system will be unable to process this influx’) the absence of pressures upon the asylum system is not an absolute bar to the activation of the temporary protection, but the existence of risk constitutes an additional factor to be taken into account by the European Union. If the system of individual examinations of asylum applications is suspended under circumstances of mass influx, and an accelerated system of refugee recognition is introduced not taking into account individual circumstances, this may be an indication that the asylum system of the Member States cannot properly process the influx. Access to asylum procedures during the temporary protection, and the relationship between temporary protection and asylum seeker status, are dealt with in specific provisions of the Directive (Article 17–19 below). Mass influx as a key element of temporary protection should be distinguished from the situation envisaged by Article 33 Dublin III Regulation (EU) No 604/2013 for the activation of the preventive mechanism of early warning, preparedness and crisis management. This mechanism is to be put in place, if the application of the Dublin system is ‘jeopardised due either to a substantiated risk of particular pressure being placed on a Member State’s asylum system and/or to problems in the functioning of the asylum system of a Member State’ (paragraph 1). The two systems (Dublin, Temporary Protection) are normatively distinct and operate independently from each other.

2. Geneva Convention (Article 2(b)) 7

The term ‘Geneva Convention’ is defined in reference to the Refugee Convention of 28 July 1951. Though temporary protection is not provided only to persons who fulfil the criteria of the Geneva Convention, but to a broader category of individuals, 40

Council doc. 6128/01, p. 3. Council doc. 6914/01, p. 2. 42 Council doc. 7602/01, p. 2. 43 Arenas, EJML 7 (2005), p. 435, 442. 44 COM(2000) 303, p. 29. 45 Council docs. 10209/00, p. 6; 13958/00, p. 3; 6128/01, p. 3. 46 Council docs. 5191/01, p. 3; 6709/01, p. 3. 41

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reference to the Convention and to the Protocol is necessary, because at least a class of persons eligible for temporary protection can be expected to be also refugees under the above legal instruments.

3. Displaced persons (Article 2(c)) ‘Displaced persons’ is an inclusive term for all categories of persons who are eligible for international protection under the Directive. Displaced persons are ‘third country nationals’, that are citizens of states which are not EU Members, or stateless persons. Displaced persons have not left their country or region voluntarily or in search of a better socio-economic environment, but ‘had to leave’, thus, they were forced to abandon their home or place of residence as a consequence of politically relevant violence. This does not necessarily mean that violent state or non-state actors acted in view of displacement, but it is sufficient that the refugee flows were the indirect consequence of political violence, even if the proximate cause was criminal violence facilitated by the breakdown of order and law enforcement. The condition of ‘compulsory exodus’ is also fulfilled, if the persons concerned left their country or region in response to an appeal of international organisations, even if they were not personally and directly aware of the risks to their life. Similarly, individuals who had left their country or region voluntarily, and stay legally or illegally in the territory of the EU, should enjoy equal treatment with regard to temporary protection with those who fled the country of origin. The term ‘displaced persons’ does not only include those who had to leave their countries of citizenship or permanent residence, but it comprises also those individuals who had found provisional refuge in the region, but they had to move later to the territory of the European Union because of either the spill-over of the conflict, or the lack of reception capacity in the region. The Directive protects not only displaced persons coming from a region adjacent to the European Union, but also persons who arrive from more distant territories; in the formulation of the ESC, the Commission’s proposal was not a ‘Balkans Directive’.47 Displaced persons are eligible for international protection if they are unable to return to their homes in safety. The term ‘safe and durable return’ is used in Article 6(2) in connection with the Council Decision that terminates the temporary protection, whilst Article 21(1) and Article 22 that deal with voluntary and forced return employ the term ‘respect for human dignity’. Though these terms are interconnected because they regulate the legality of return, they differ in that the former indicates the substantive conditions for the legal termination of the temporary protection regime, and the latter refers to the manner in which return is conducted.48 Displaced persons eligible for international protection may be refugees under Article 1A of the Geneva Convention or under other international or national instruments granting international protection. International protection may be granted under the Asylum Qualification Directive 2011/95/EU, or afforded by national constitutional rules, for instance Article 16a of the Basic Law of Germany.49 The Temporary Protection Directive puts emphasis on two categories of displaced persons: persons who have fled areas of armed conflict or endemic violence, and persons at serious risk of, or who have been the victims of, systematic or generalised violations of their human rights. 47

ESC Opinion 2001/C 155/06, OJ 2001 C 155/21, at 2.2. The relevant terms shall be commented under the respective provisions. 49 Basic Law for the Federal Republic of Germany (Grundgesetz fu ¨ r die Bundesrepublik Deutschland), 23 May 1949, BGBl., p. 1, as subsequently amended. 48

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There hasn’t been any discussion on the meaning of these terms during the deliberations of the various organs of the European Union involved in the drafting of the Directive. This terminology is also different from the one adopted by Article 15 lit.c of the former Qualification Directives 2004/83/EC and the Asylum Qualification Directive 2011/95/EU, which define the beneficiary of subsidiary protection in terms of ‘serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict’. Despite the drafting history of the Asylum Qualification Directive drawing, at this particular point, on the Temporary Protection Directive, it looks as if the interpretation of the two Directives would be incongruent, not only because of the differences in their actual meaning,50 but also because temporary protection is linked to an emergency response in situations of mass influx, and subsidiary protection to individual international protection status. Nevertheless, following the Elgafaji Judgment of the European Court of Justice (ECJ) and the protection-friendly interpretation of the above Article 15(c),51 it seems that, to some extent, the distinction between the two Directives has been blurred. Moreover, even though their conditions of applicability differ, both Directives are applied on comparable factual situations, affording protection to similar categories of victims. A major difference between the two Directives is that the Temporary Protection Directive is to be interpreted and implemented by the political organs of the European Union that enjoy broad discretionary powers, and the interpretation and application of the Asylum Qualification Directive 2011/95/EU by the Member States is under the judicial control of domestic courts and the ECJ. Considering the meaning of the term ‘displaced persons’ as a concept of Community law, informed by international law but not tied to its definitions, the following principles could be used for the functional interpretation of Article 2(c)(i) and (ii): The concepts of ‘armed conflict’ and ‘endemic violence’ are the two ends of a continuum determining the existence of violence that may induce people to flee an area, territory, or country en masse. International and non-international armed conflicts in the meaning of international humanitarian law always fulfil the condition of the Directive.52 The same happens with endemic violence, which is in a grey area, at the boundaries of armed conflict. Endemic violence exists if the lack of effective law enforcement mechanisms is an entrenched feature of a dysfunctional political system, or of collapsing authority in failed states, or if the legitimate authorities are not capable of exercising the monopoly of force. Endemic violence can be politically motivated, criminal, or hybrid, combining elements of both. Temporary disturbances of public order, including sporadic acts of violence, do not reach the threshold of endemic violence, in the meaning of the Directive, even though they may, under the circumstances, lead to temporary outflow of persons. ‘Systematic’ violations of human rights are qualified by a recurring pattern and presume a sufficient degree of organization and planning. ‘Generalized’ violations have a quantitative and qualitative aspect: they are widespread, and constitute serious breaches of, and intrusions into, the protected sphere of the individuals concerned.53 50 Cf. the decision of the UK Asylum and Immigration Tribunal in the case KH (Article 15(c) Qualification Directive) Iraq v. Secretary of State for the Home Department, CG [2008] UKAIT 00023, 25 March 2008, paras. 65–68., 51 ECJ, Elgafaji, C-465/07, EU:C:2009:94. 52 Obviously under the assumption of the existence of mass influx attributable to the armed conflict. 53 Cf. also the formulation of Article 40 para. 2 of the articles of the International Law Commission (ILC) on State responsibility that the breach by a State of an obligation arising under a peremptory norm

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So-called ‘environmental refugees’ are not in principle included in the scope of the 19 Directive. Finland asked for persons who have fled as a result of natural disasters to be added into the definition of displaced persons, but Belgium and Spain objected with the argument that this category of persons were not comprised in the refugee definitions under international law.54 It remains an open question though whether, depending on the context, the 20 combination of adverse environmental factors with the failure of the state of origin to effectively protect the victims might reach the threshold of human rights violations.

4. Mass influx (Article 2(d)) The Commission defined the concept of ‘mass influx’ in terms of the combination of 21 three phenomena. First, the influx should come from the same country or region, therefore ‘the cyclical and cumulative influx of asylum seekers from different countries does not constitute the mass influx triggering the temporary protection regime’. Second, the gradual arrival of displaced persons does not in principle activate the system of the Directive before the inflows increase so that the regular operation of the asylum system comes under stress. Third, the number of displaced persons must be ‘substantial’, but this cannot be quantified in advance.55 This is an assessment to be made by the Council and the Commission exercising their discretionary power.56 This conceptualization of ‘mass influx’ should be partially revised following the final 22 phrasing of the Directive, because the risk of dysfunctions in the asylum system is not determinative, but merely one of the indicators of the mass influx. Furthermore, the UNHCR contended that the ‘large number of displaced persons’ constituting the mass influx cannot be assessed in absolute numbers, but rather in relation to the resources of the receiving country.57 The inability of the asylum system of a Member State to operate properly for internal reasons, for instance as the result of a structural and longterm economic crisis, is not an indication for an influx in the sense of the Directive, even if there is an increase in the number of arrivals, as long as there is sufficient evidence that the applications could have been processed under a routinely functioning asylum system. Influx of applicants in a single Member State is also not an indicator for a Union-wide mass influx per se, unless this Member State is, due to geographic proximity, the main country of entry of applicants from a specific region. Mass influx of illegal immigrants motivated by a combination of factors involving poverty, instability, and instances of political violence in a variety of countries of the same region,58 is not sufficient to activate the temporary protection, unless some groups can be singled out as displaced persons satisfying the specific conditions of Article 2(c). As there is no actual practice on the application of the Temporary Protection 23 Directive, there can only be an attempt of legal construction on how to determine the existence of a mass influx. It appears that the EU organs should take into account a matrix of factors enabling the quantification and qualification of the flows. Inter alia, they should consider the change in absolute numbers over a certain period of time (monthly, semi-annually, annually), the number of Member States affected by the of general international law ‘is serious, if it involves a gross or systematic failure by the responsible State to fulfil the obligation’, UN Doc. A/RES/56/83 of 28 January 2002. 54 See, for instance, Council doc. 6128/01, p. 4. 55 COM(2000) 303, p. 14. 56 Arenas, EJML 7 (2005), p. 435, 446, 449. 57 Council doc. 11620/00, p. 13. 58 Cf. the situation of the mixed migration flows by sea into Southern Europe, Parliamentary Assembly of the Council of Europe, Resolution 1637/2008.

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arrivals at their borders, the increase, stabilization, or decrease of the flows, and, potentially, the ratio between the number of arrivals, the population of the Member State(s) and their resources. Whilst the scale is a constituent element for the mass influx, the ‘suddenness’ is a main indicator, but not a ‘key ingredient’ of the concept.59 Arguably, the suddenness of the movement is a ‘regulator’ of the scale, as it may justify the existence of ‘mass influx’ in the sense of the Directive by a lower number of individuals seeking protection, compared to situations of slower development of the flows. Thus, the more ‘sudden’ the refugee flow is, the lower the scale of flows can be and, inversely, the slower the development of the flows is, the higher the scale that justifies the determination of mass influx. 24 ‘Arrival in the Community’ means that displaced persons have reached the territory of the Member States, including seaports, airports together with their transit areas, or have entered their territorial sea or contiguous zone. There is no ‘arrival in the Community’ if the displaced persons request territorial or diplomatic asylum in diplomatic representations, or seek temporary protection in military bases of Member States in their home country or region of origin.60 The reason is that the Directive does not deploy any general extraterritorial effect, apart from the specific case of evacuation, and does not grant temporary protection to displaced persons who are generally ‘under the jurisdiction’ of the Member States;61 it only employs the term ‘arrival’ to indicate its territorial scope of application. 25 The proposal of the Commission did not include arrival by evacuation, which was added later upon proposal by Germany and Italy.62 Evacuation has as a purpose to assist internally displaced persons, or persons trapped within the area, country, or region of conflict to arrive in the Union. It can be carried out by individual operators or Member States, or be implemented through coordinated action. 26 Here are some estimates on the scale of refugee flows and the number of persons who sought protection in the EU in the last twenty years, without prejudice to the legal basis of the protection, or to the status of the individuals. During the Bosnian crisis, about 580,000 individuals from the crisis region entered the EU; 90 % of them were admitted in Germany, Sweden and Austria (60 % of the total in Germany).63 As a consequence of the Kosovo crisis, an estimated 800,000 refugees entered Albania, Macedonia, and Montenegro, in 1999, and 90,000 were evacuated in third countries.64 An estimated 58,000 Kosovars were admitted in the EU.65 However, these numbers are burdened with considerable uncertainty.66 59

Contra Durieux/McAdam, IJRL 16 (2004), p. 4, 17. Cf. the decision of the English Court of Appeal in the case The Queen on the Application of Nassar Al-Saadoon v. Secretary of State for Defence, (2009) EWCA Civ 7, in particular para 40 (Lord Justice Laws), according to which the UK did not have jurisdiction or powers to detain, or protect, Iraqi citizens in the military base of Basra, against the will of the government of Iraq, (see however ECtHR, Judgement of 2 March 2010, No. 61498/08, Al-Saadoon and Mufdhi v. the UK, confirming UK jurisdiction in the base). 61 Cf. the wording of Article 1 ECHR: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’. This includes extraterritorial jurisdiction under the circumstances determined by the ECtHR. 62 See Council docs. 13958/00, p. 4 and 5191/01, p. 4. Greece and Spain objected on the basis that the Community did not have competence for organized evacuations under Title IV of the Treaty, Council doc. 6128/01, p. 4. 63 Koser/Walsh/Black, IJRL 10 (1998), p. 444, 447. 64 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, S/1999/779, 12 July 1999, paras. 8–9. 65 Kerber, Georgetown Immigration Law Journal 14 (1999), p. 35, 48. 66 For instance, a table included in Kerber, id., shows that Greece received 5,500 Kosovars during the 1999 crisis, whilst actually this Member State received none: see Council doc. 11808/99 of 21 October 60

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Refugee flows triggered by the armed conflict in Iraq (in particular during the 2006– 27 2008 period) peaked by the second half of 2007, when the total number of refugees and displaced persons reached 4.2 million, with displacement rates rising to 60,000 persons a month.67 Among them, 2.4 million were displaced within Iraq, whilst 1.5–2 million sought refuge in Jordan and Syria.68 In total, about 196,000 Iraqis applied for asylum in the EU between 2003-August 2013.69 As a consequence of the insurgencies across North Africa, about 48,000 persons arrived 28 in Italy between January-July 2011,70 under circumstances fulfilling the condition of ‘suddenness’, but not necessarily all the other conditions of the Directive. Between January-July 2014, 87,000 persons arrived in Italy coming mainly from Eritrea and Syria.71 The number of Syrian asylum-seekers in the EU increased dramatically in the period 2012–2014: there were about 24,000 applications in 2012, 50,000 applications in 2013, and 125,000 applications in 2014.72 However, these numbers are limited compared to the extent of the exodus from Syria towards neighbouring states, which reached 3.8 million at the beginning of 2015. More specifically, there were about 1,161,000 refugees in Lebanon, 1,552,000 in Turkey, and 622,000 in Jordan.73 According to EASO ‘Asylum Trends’ for October 2015, the number of asylum applications in the EU reached the one million mark in the first ten months of 2015. Despite the clear case for the existence of mass influx under these circumstances, the Temporary Protection Directive was not activated.

5. Refugees and stateless persons (Article 2(e)) The Directive adopts the refugee definition of Article 1(A) of the Geneva Conven- 29 tion and includes also stateless persons. Furthermore, the provision excludes EU nationals from the scope of refugee definition and protection.74

6. Unaccompanied minors (Article 2(f)) The concept of the unaccompanied minors was drawn from Council Resolution of 30 26 June 1997 on unaccompanied minors who are nationals of third countries.75

7. Residence permit (Article 2(g)) Concerning the term ‘residence permit’, the Commission’s Explanatory Memoran- 31 dum reads as follows: 1999, p. 9; similarly UNHCR Kosovo Crisis Update, 5 July 1999, available at: http://reliefweb.int/report/ albania/unhcr-kosovo-crisis-update-5-july-1999 [last accessed 31 March 2015]. 67 Report of the Secretary-General pursuant to paragraph 6 of resolution 1770 (2007), S/2007/608, 15 October 2007, paras. 40–41. 68 Report of the United Nations High Commissioner for Refugees to the UN General Assembly, UN Doc A/63/12, Suppl. No. 12, para. 12. 69 Fandrich, A Comparative Study, p. 4. 70 Nascimbene/Di Pascale, EJML 13 (2011), p. 341, 343, note 5. 71 UNHCR Global Appeal 2015 Update, p. 132. 72 EASO, Latest asylum trends and main countries of origin, December 2014, in: http://easo.europa.eu/ wp-content/uploads/Latest-Asylum-Trends-December-2014.pdf [last accessed 31 March 2015]; Eurostat Asylum Statistics, in: http://ec.europa.eu/eurostat/statistics-explained/index.php/File:Countries_of_origin_of_(non-EU)_asylum_seekers_in_the_EU-28_Member_States,_2012_and_2013_YB15.png [last accessed 31 March 2015]. 73 Syrian Refugees – Inter-Agency Regional Update, 18 February 2015, in: http://www.refworld.org/ docid/54e5e8b74.html [last accessed 31 March 2015]. See also Ineli-Ciger, Oxford Monitor of Forced Migration Vol. 4, issue 2 (2014), p. 28–36 on the new Turkish legislation applicable on Syrian refugees. 74 See the Protocol on asylum for nationals of Member States of the European Union, annexed to the Treaty of Amsterdam. 75 OJ 1997 C 221/23; see also COM(2000) 303, p. 15.

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‘Residence permit is defined in the broadest sense and includes all types of residence permits issued by the Member States, without distinction as to the reason for their issue or the form they take. They must, however, be clear authorisations to reside and not merely documents tolerating the holder’s presence on the country’s territory.’76

8. Sponsor (Article 2 (h)) 32

The concept of the ‘sponsor’ is defined in Article 2 lit. h), and is further employed in Article 15 on family reunification.

Article 3 1. Temporary protection shall not prejudge recognition of refugee status under the Geneva Convention. 2. Member States shall apply temporary protection with due respect for human rights and fundamental freedoms and their obligations regarding non-refoulement. 3. The establishment, implementation and termination of temporary protection shall be the subject of regular consultations with the Office of the United Nations High Commissioner for Refugees (UNHCR) and other relevant international organisations. 4. This Directive shall not apply to persons who have been accepted under temporary protection schemes prior to its entry into force. 5. This Directive shall not affect the prerogative of the Member States to adopt or retain more favourable conditions for persons covered by temporary protection. Content I. Relationship to refugee status (Article 3(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Respect for human rights, fundamental freedoms and obligations regarding non-refoulement (Article 3(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Consultations with UNHCR and other international organisations (Article 3(3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Principle of non-retroactivity (Article 3(4)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. ‘More favourable conditions’ clause (Article 3(5)) . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. Relationship to refugee status (Article 3(1)) 1

According to Article 3(1), ‘temporary protection shall not prejudge recognition of refugee status under the Geneva Convention.’ The meaning of the provision is that the temporary protection shall not constitute a derogation from the Geneva Convention.77 Furthermore, the granting or termination of temporary protection shall not be a factor per se with regard to the substantive assessment, whether an individual fulfils the conditions of a refugee under the Geneva Convention. Evidently, if the examination of the application for refugee status is made during the period of validity of the temporary protection, the ongoing conflict in the country of origin may justify a higher ratio of recognition, compared to the ratio following the restoration of peace and the end of temporary protection.

76 77

COM(2000) 303, p. 15. Id.

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II. Respect for human rights, fundamental freedoms and obligations regarding non-refoulement (Article 3(2)) Concerning Article 3(2),the original proposal of the Commission mentioned only the 2 protection of human rights as guaranteed by the ECHR.78 Some delegations disagreed contending either that there were other relevant international instruments as well, such as the Torture Convention and the International Covenant on Civil and Political Rights, or that any such instruments could be included in the preamble.79 The UNHCR and the EP asked for the principles of admission and non-rejection at the border to be mentioned in the Directive,80 but these proposals were not accepted by the Council. After repeated changes to the formulation,81 the final wording was agreed upon.82

III. Consultations with UNHCR and other international organisations (Article 3(3)) International organisations, in particular the UNHCR, shall be consulted regularly 3 with regard to the establishment, implementation and termination of temporary protection. ‘Regular consultations’ are more than mere ‘exchange of information’, which was suggested as an alternative formulation by France.83 The preamble of the Directive84 explicitly refers to Declaration 17 of the Final Act of the Treaty of Amsterdam on Article 73k that reads: ‘Consultations shall be established with the United Nations High Commissioner for Refugees and other relevant international organisations on matters relating to asylum policy.’ Other ‘relevant international organisations’ with whom the European Union should 4 consult in emergencies include the United Nations, the OSCE, the International Organization for Migration (IOM), and the ICRC.

IV. Principle of non-retroactivity (Article 3(4)) Article 3(4) refers to the previous protection schemes for Bosnian and Kosovan 5 refugees, and expresses the principle of non-retroactivity of the Directive.85

V. ‘More favourable conditions’ clause (Article 3(5)) The ‘more favourable conditions’ clause of Article 3(5) is intimately linked to the 6 ‘minimum standards’ character of the Directive,86 and to the partial and ‘open’ character of the harmonization. Since one of the main objectives of the Directive is ‘to avert the risk of secondary movements’,87 Member States may introduce more favour78

Ibid., p. 30. Council docs. 10209/00, p. 8 and 13958/00, p. 6. 80 Council doc. 11620/00, p. 11–13; EP Report A5-0077/2001, OJ 2001 C 343/82, Amendment 9. 81 Council docs. 5191/01, p. 6; 6552/01, p. 4; 6914/01, p. 4. 82 Council doc. 7602/01, p. 4. 83 Council doc. 5191/01, p. 7. 84 See Preamble, recital 11. 85 See also below, Article 5(3)(b). 86 Preamble, recital 12. 87 Preamble, recital 9. 79

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able standards under the condition that they do not undermine this objective, and are not inconsistent with any other provision of the Directive.88 The ESC defined the risk of secondary movements as ‘risk of distorting the spontaneous choice of host country’.89

CHAPTER II Duration and implementation of temporary protection Article 4 1. Without prejudice to Article 6, the duration of temporary protection shall be one year. Unless terminated under the terms of Article 6(1)(b), it may be extended automatically by six monthly periods for a maximum of one year. 2. Where reasons for temporary protection persist, the Council may decide by qualified majority, on a proposal from the Commission, which shall also examine any request by a Member State that it submit a proposal to the Council, to extend that temporary protection by up to one year. Content I. Duration and automatic extension of temporary protection (Article 4(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Extension by decision of the Council (Article 4(2)) . . . . . . . . . . . . . . . . . . . . . . . .

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I. Duration and automatic extension of temporary protection (Article 4(1)) The duration of the temporary regime has been a matter of controversy among the Member States. In its 1998 proposal, the Commission had suggested five years as the maximum duration of the regime.90 In the 2000 proposal, the Commission reduced the maximum duration of the protection to two years.91 Germany and the ESC asked for a longer time frame, but the Netherlands and Austria wanted a duration not exceeding eighteen months; Ireland and Finland suggested less than a year.92 The compromise solution, as mirrored in the wording of Article 4, was based on a proposal by the Presidency.93 2 Under the terms of Article 4(1), the duration of the temporary protection is one year. If no further action is taken by the Council, that is if it is not terminated under the terms of Article 6(1)(b), it is extended by six-monthly periods for a maximum of one year. The extension is automatic. 1

II. Extension by decision of the Council (Article 4(2)) 3

Extension beyond the two years is only possible if the reasons for the protection persist and there is no fundamental change to the circumstances upon which the initial 88 Cf. the considerations of the Legal Service with regard to the Proposal for the Qualification Directive, Council doc. 14348/02. 89 ESC Opinion 2001/C 155/06, OJ 2001 C 155/21, at 1.3. 90 COM(1998) 372/2, p. 15. 91 Draft Article 4, COM(2000) 303, p. 31. 92 Council doc. 5191/01, p. 8, 10; ESC Opinion 2001/C 155/06, OJ 2001 C 155/21, at 2.13. 93 Council doc. 6709/01, p. 3, 5; cf. also Council doc. 6303/01, p. 1–2.

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decision to introduce temporary protection was based. The extension takes place by further decision of the Council, taken by qualified majority on proposal by the Commission. The Commission cannot ignore the request of a Member State regarding the extension of the protection, and is obliged to examine it. This final extension shall be ‘up to a year’, thus the Council may decide to extend the protection by less, but no more, than one year.

Article 5 1. The existence of a mass influx of displaced persons shall be established by a Council Decision adopted by a qualified majority on a proposal from the Commission, which shall also examine any request by a Member State that it submit a proposal to the Council. 2. The Commission proposal shall include at least: (a) a description of the specific groups of persons to whom the temporary protection will apply; (b) the date on which the temporary protection will take effect; (c) an estimation of the scale of the movements of displaced persons. 3. The Council Decision shall have the effect of introducing temporary protection for the displaced persons to which it refers, in all the Member States, in accordance with the provisions of this Directive. The Decision shall include at least: (a) a description of the specific groups of persons to whom the temporary protection applies; (b) the date on which the temporary protection will take effect; (c) information received from Member States on their reception capacity; (d) information from the Commission, UNHCR and other relevant international organisations. 4. The Council Decision shall be based on: (a) an examination of the situation and the scale of the movements of displaced persons; (b) an assessment of the advisability of establishing temporary protection, taking into account the potential for emergency aid and action on the ground or the inadequacy of such measures; (c) information received from the Member States, the Commission, UNHCR and other relevant international organisations. 5. The European Parliament shall be informed of the Council Decision. Content I. II. III. IV.

Decision on the existence of a mass influx (Article 5(1) and (2)). . . . . . . . . 1 Effect and content of the Council Decision (Article 5(3)) . . . . . . . . . . . . . . . . . . 5 Basis for the Council Decision (Article 5(4)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Information of the European Parliament (Article 5(5)). . . . . . . . . . . . . . . . . . . . . 17

I. Decision on the existence of a mass influx (Article 5(1) and (2)) The existence of a mass influx is legally established by a Council Decision on the 1 basis of a Commission proposal. The adoption of the Decision is an act of political will and the Council possesses here broad discretionary powers. Nevertheless, the failure of the Union to act, when protection ‘cannot be sufficiently attained by the Member Skordas

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States’,94 might lead to violations of international refugee law and human rights law by the Member States. 2 Due to the margin of appreciation the EU organs enjoy, there is no place for a subjective right that temporary protection should be introduced or afforded. This question should be distinguished from the issue of judicial remedies in cases of exclusion of persons from protection, once the existence of the mass influx has been established under Union law.95 3 The Decision of the Council is taken by qualified majority. France, Portugal, Spain and Finland favoured unanimity, inter alia because of the foreign policy implications of the Decision.96 These objections were countered by the Presidency on the ground that the Decision on temporary protection would be taken under time pressure and that, according to the Legal Service of the Council, qualified majority was allowed by the Treaty.97 4 According to Article 5(2)(c), the proposal of the Commission should make a general assessment of the scale of the movements, considering the potential cascade effect due to the activation of the temporary protection.98

II. Effect and content of the Council Decision (Article 5(3)) Even though the Council Decision is ‘binding in its entirety’ on the Member States,99 and has direct effect (‘shall have the effect of introducing…’), the Odysseus study concluded that ‘sole reliance on the direct effect of a Council Decision triggering a Union-wide temporary protection scheme in domestic law is counterproductive’ and suggested that ‘a diligent activation of temporary protection on the domestic level is of outmost importance to avert the risk of secondary movements’.100 6 Article 5(3) determines the content that the Council Decision should include. According to Article 5(3)(a), the Decision shall comprehend a description of the specific groups of persons to whom the temporary protection applies. The Directive introduces here the principle of selectivity, in the sense that the Council shall determine the protected groups in terms of identity, including, under the circumstances, ethnicity, religion, or language. It can be expected that the Council would make this determination on the basis of actual or emerging patterns of persecution (see Article 2(c)(ii)). For persons displaced as a consequence of endemic violence or armed conflict, the determination would not be necessarily made with reference to persecution, though this depends on the circumstances of the crisis.101 From the moment the Decision takes effect, deportation proceedings against members of the protected groups towards the country or region of origin of the mass influx shall be suspended. Though this is not included in the Directive, it is the logical consequence of extending protection to specific groups of displaced persons. 7 The original proposal of the Commission included draft Article 15 (subsequently renumbered as draft Article 7A) stating that the Member States should implement their obligations without discrimination between persons enjoying temporary protection. 5

94

See recital 23, principle of subsidiarity. See also MN 9 in this article, and Article 29, below. 96 Council docs. 10209/00, p. 3; 13958/00, p. 9 and 6128/01, p. 9. 97 Council doc. 6303/01, p. 2. 98 For the interpretation of Article 5(2)(a) and (b), cf. the similar concepts of Article 5(3)(a) and (b) respectively, below, II. 99 See Article 249 TEC (now Article 288 TFEU). 100 Noll/Gunneflo, Odysseus Synthesis Report, p. 16. 101 See Article 2(c)(i). 95

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This provision faced strong objections by the majority of the Member States with three main arguments: first, that human rights principles were invoked in other provisions of the draft, second, that the principle of non-discrimination could be placed in the preamble, and third, that the legal consequences of a provision with that content were unknown.102 Finally, non-discrimination was placed in recital 16. The UNHCR underscored the risk of discrimination between those displaced persons arriving spontaneously at the borders of the European Union and those admitted under evacuation schemes.103 Similarly, the Committee of the Regions (CoR) sharply criticized the selection practices of the Member States in Macedonia during the Kosovo crisis.104 Such objections are unjustified, if it is considered that temporary protection in the Union can be expected to cover only a fraction of the persons in need, thus selection criteria may be necessary. The UK and German practice on the protection of Syrian refugees clearly demonstrates that these criteria depend on the domestic values and legitimate objectives of the host state (see above Article 1). The UK argued that Member States should be able to deny temporary protection to persons who inaccurately claim that they belong to the protected group. The Commission responded that this topic was relevant to the exclusion clause,105 but it overlooked the fundamental difference between checking whether a displaced person falls within the scope of the Council Decision, and excluding a person belonging to the group for the specific reasons of the exclusion clause. Germany later proposed a further subparagraph on ‘modalities concerning border crossings, transit and identification of the displaced persons to be admitted’.106 Although neither proposal was accepted, Member States should have the inherent power to check and identify the persons who enter into their territories, as well as their membership to the protected groups (see also below Article 28), unless there is a situation of force majeure which does not enable the orderly admission of displaced persons in the host country. According to Article 5(3)(b), the Decision shall also determine the date on which the temporary protection will take effect. The date will signify the activation of the obligations of the Member States vis-a`-vis the Union, even if individual Member States would have already provided temporary protection. It introduces the principle of nonretroactivity of the Decision. The Decision shall further include the information received from the Member States on their reception capacity, cf. Article 5(3)(c). The 1995 Council Resolution ‘on burden-sharing with regard to the admission and residence of displaced persons on a temporary basis’ provided that burden-sharing should be assessed taking into account the contribution of each Member State to the prevention or resolution of the crisis, its participation in the UN and OSCE missions, its supply of military resources and humanitarian assistance, and all other political, social and economic factors affecting the capacity of the Member State.107 The system of temporary protection under the Directive does not take any of these factors into consideration, but is based on the reception capacity of the Member States, as communicated to the Council.108 The EP proposed to include ‘the criteria to be applied for the purposes of a balanced allocation between Member States of persons enjoying temporary protection’ in the 102

Council docs. 13958/00, p. 19; 5191/01, p. 19; 6128/01, p. 12; 6914/01, p. 8 and 7602/01, p. 8. Council doc. 11620/00, p. 5. 104 CoR Opinion 2001/C 357/02 of 13 June 2001, OJ 2001 C 357/6, at 21.2. 105 Council doc. 13958/00, p. 9. 106 Council doc. 6914/01, p. 6. 107 OJ 1995 C 262/1, at 4. 108 See Article 24, MN 2, and Article 25, below. 103

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Council Decision under Article 5.109 This was not accepted, and no specific numbers of displaced persons are allocated in each Member State by the Decision.110 13 Information from the Commission, UNHCR and other relevant international organisations shall be included in the Council Decision pursuant to Article 5(3)(d). The obligation to hold regular consultations with the UNHCR and other relevant international organizations under Article 3(3) should be distinguished from the use of information from the UNHCR under Article 5(3) as an element of the Decision of the Council.

III. Basis for the Council Decision (Article 5(4)) Article 5(4)(a) determines that the Council Decision is to be based on ‘an examination of the situation and the scale of the movement of displaced persons’. This is a factual assessment of the situation regarding the magnitude of the population movements, including the exodus from the country or region of origin and the mass influx in the EU. 15 The Council Decision shall further make an assessment of the advisability of establishing temporary protection, cf. Article 5(4)(b). The advisability circumscribes the appropriateness of the action, considering in particular the alternative of providing aid in the country or region of origin, or its inadequacy. The EP suggested inserting also the element of ‘necessity’,111 but this was not approved by the Member States that dispelled any notion that they might incur an obligation to establish temporary protection under any circumstances. 16 According to Article 5(4)(c), the Council shall also take into account information received from the Member States, the Commission and international organisations, in particular UNHCR. 14

IV. Information of the European Parliament (Article 5(5)) 17

According to Article 5(5), the EP shall be informed, but shall not be otherwise involved in the adoption or implementation of the Council Decision.

Article 6 1. Temporary protection shall come to an end: (a) when the maximum duration has been reached; or (b) at any time, by Council Decision adopted by a qualified majority on a proposal from the Commission, which shall also examine any request by a Member State that it submit a proposal to the Council. 2. The Council Decision shall be based on the establishment of the fact that the situation in the country of origin is such as to permit the safe and durable return of those granted temporary protection with due respect for human rights and fundamental freedoms and Member States’ obligations regarding non-refoulement. The European Parliament shall be informed of the Council Decision.

109

EP A5-0077/2001, OJ 2001 C 343/82, Amendment 11. So also Kerber, EJML 4 (2002), p. 193, 199. 111 EP A5-0077/2001, OJ 2001 C 343/82 Amendment 12. 110

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Content I. End of temporary protection (Article 6(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Basis for the Council Decision (Article 6(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2

I. End of temporary protection (Article 6(1)) Pursuant to Article 6(1)(a) and b), temporary protection shall end, when the 1 maximum duration has been reached, or at any time by a Council Decision. The maximum duration is reached when the two- or three-year period has come to an end, according to Article 4(1) or Article 4(2) respectively. The Council Decision, terminating the temporary protection, can be taken at any time before the initial two year-period has been completed. It can also be taken at any time during the period of validity of the Council Decision prolonging the duration of the temporary protection regime for up to a year. The Council Decision, bringing temporary protection to an end, shall be adopted by qualified majority, cf. Article 6(1)(b). Portugal had asked for the Council Decision to be also adopted by unanimity,112 but the proposal was not accepted. A Member State cannot declare the end of temporary protection as long as the EU protection system is still in force. Furthermore, it cannot maintain the EU protection system after it has been terminated, because this would create secondary movements. Member States may authorize some displaced persons to remain in their territory (see below Article 22), or resettle them, after the EU system has come to an end, or apply any other national temporary protection scheme.

II. Basis for the Council Decision (Article 6(2)) According to Article 6(2), the Council Decision shall be based on the establishment of 2 the fact that the situation in the country of origin is such as to permit the safe and durable return of those granted temporary protection with due respect for human rights and fundamental freedoms and Member States’ obligations regarding non-refoulement. The European Parliament shall be informed of the Council Decision, but shall not be otherwise involved in the deliberations of the Council. The proposal of the Commission used the terms ‘long-term, safe and dignified 3 return’, and mentioned Article 33 of the Geneva Convention and the ECHR.113 The term ‘dignified’ was criticized as unclear, and the inclusion of Article 33 was considered as potentially foreshadowing the interference of the judiciary in a political decision.114 Despite the change of the wording, the Explanatory Memorandum of the Commis- 4 sion is useful for the interpretation of the ‘safe and durable return’ concept. The Commission stressed that displaced persons ‘must be able to return in safety and dignity in a stable context and in conditions where their life or freedom would not be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion and where they would not be subjected to torture or to inhumane or degrading treatment or punishment.’ Further, the Memorandum highlighted the role of the peace and reconstruction process, and of conditions that guarantee respect for human rights and fundamental freedoms.115

112

See for instance, Council doc. 6128/01, p. 10. Draft Article 6, COM(2000) 303, p. 32. 114 Council doc. 5191/01, p. 11. 115 COM(2000) 303, p. 16. 113

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The UNHCR emphasized that, by the termination of the temporary protection, the European Union should assess whether sufficient guarantees for the physical safety, legal security and respect for basic rights exist in practice.116

Article 7 1. Member States may extend temporary protection as provided for in this Directive to additional categories of displaced persons over and above those to whom the Council Decision provided for in Article 5 applies, where they are displaced for the same reasons and from the same country or region of origin. They shall notify the Council and the Commission immediately. 2. The provisions of Articles 24, 25 and 26 shall not apply to the use of the possibility referred to in paragraph 1, with the exception of the structural support included in the European Refugee Fund set up by Decision 2000/596/EC(9), under the conditions laid down in that Decision. Content I. Extension of temporary protection ratione personae by the Member States (Article 7(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Non-application of solidarity rules (Article 7(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. Extension of temporary protection ratione personae by the Member States (Article 7(1)) According to Article 7(1), Member States may extend temporary protection as provided for in the Directive to additional categories of displaced persons over and above those to whom the Council Decision provided for in Article 5 applies. This is a genuine ‘may’ clause and mirrors the ‘minimum standards’ nature of the Directive. 2 Extension of the temporary protection, which has been introduced by Council Decision, on additional categories of displaced persons, is possible, but only if they are displaced for the same reasons and from the same country or region of origin. As the Odysseus study stressed, if temporary protection under the Directive was extended unilaterally beyond its scope ratione personae, and outside the limits of Article 7, it would be inconsistent with the above provision and would risk creating secondary movements, in particular in view of the family reunification provisions.117 1

II. Non-application of solidarity rules (Article 7(2)) The solidarity provisions of Article 24, 25 and 26 are not applicable to the use of the possibility referred to in Article 7(1), with the exception of the structural support included in the European Refugee Fund set up by Decision 2000/596/EC. 4 Some delegations opposed solidarity in Article 7 situations, and asked for the related issues to be regulated exclusively by domestic law,118 so that the Member State concerned 3

116 UNHCR, Annotated Comments on Council Directive 2001/55/EC, 19 May 2003, p. 9, available at: http://www.unhcr.org/refworld/docid/3ecdeebc4.html [last accessed 31 March 2015]. (9) OJ 2000 L 252, p. 12. 117 Noll/Gunneflo, Odysseus Synthesis Report, p. 27. Cf. also the standpoints of some delegations, Council doc. 13958/00, p. 11. 118 See, for instance, Council doc. 5191/01, p. 11.

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bears the burden of the extension of temporary protection. Indeed, the solidarity provisions of Chapter VI of the Directive (Article 24–26) are not applicable in the extended protection of Article 7(1), with the exception of structural support included in the ERF, and no relocation of these persons in other Member States is possible.

CHAPTER III Obligations of the Member States towards persons enjoying temporary protection Article 8 1. The Member States shall adopt the necessary measures to provide persons enjoying temporary protection with residence permits for the entire duration of the protection. Documents or other equivalent evidence shall be issued for that purpose. 2. Whatever the period of validity of the residence permits referred to in paragraph 1, the treatment granted by the Member States to persons enjoying temporary protection may not be less favourable than that set out in Articles 9 to 16. 3. The Member States shall, if necessary, provide persons to be admitted to their territory for the purposes of temporary protection with every facility for obtaining the necessary visas, including transit visas. Formalities must be reduced to a minimum because of the urgency of the situation. Visas should be free of charge or their cost reduced to a minimum. Content I. Residence permits (Article 8(1) and (2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Visas (Article 8(3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. Residence permits (Article 8(1) and (2)) Pursuant to Article 8(1), Member States are obliged to issue residence permits for persons under a temporary protection scheme. For the definition of the residence permits, see above, Article 2(g). The Directive does not determine the precise period of validity of the residence permits, and it is up to the Member States to adopt the relevant rules.119 The provision makes clear that whatever the period of validity, displaced persons enjoying temporary protection in any Member State should be granted at least the treatment provided for in Articles 9–16. These provisions introduce obligations of the Member States, but they do not correspond necessarily to subjective rights under the Directive, with the exception of the Article 29 cases, and of the ‘right’ to a voluntary return in Article 21(3). Other than in the Asylum Reception Conditions Directive 2013/33/EU, the Temporary Protection Directive does not include any provisions on confinement or detention of displaced persons. Nevertheless, other than the above Directive, it does not contain any provision on the freedom of movement in the host Member State, either, and was criticized by the UNHCR for this omission.120 The EP suggested an amendment permitting in principle the free movement in the Union, which was not accepted by the Council.121 119

COM(2000) 303, p. 8. UNHCR, Annotated Comments on Council Directive 2001/55/EC, p. 9. 121 EP A5-0077/2001, O.J. C 343/82 (2001), Amendment 37. 120

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Part D II Art. 10

Asylum

It is noteworthy that the issue of the freedom of movement in situations of mass influx of displaced persons, or of persons fleeing as a consequence of a natural catastrophe, had been raised during the travaux pre´paratoires of the Geneva Convention. A general understanding had been reached that the freedom of movement was not applicable in these situations, and restrictions could be applied, at least for reasons of health.122 6 As a matter of principle, practices disproportionally restricting the freedom of movement of displaced persons in the host country are incompatible with contemporary human rights standards. 5

II. Visas (Article 8(3)) 7

There was no disagreement among the Member States with regard to visa facilitation. The main controversial issue was whether visas would be given to persons eligible for international protection free of charge or not. While the proposal of the Commission had adopted the first alternative,123 and was supported by Germany,124 France disagreed, arguing that under her domestic law visas were free only for poverty-related, but not for urgency-related reasons.125 Furthermore, the UNHCR and the EP were in favour of abolishing visa requirements altogether, and against the application of carrier sanctions in the circumstances of the Directive.126 The final sentence of Article 8(3) reflects the compromise between the Member State, which gives each State the discretion either to impose a minimum fee or to grant visas free of charge.

Article 9 The Member States shall provide persons enjoying temporary protection with a document, in a language likely to be understood by them, in which the provisions relating to temporary protection and which are relevant to them are clearly set out. Articles 9–16 specify the treatment persons enjoying temporary protection in any Member State should be granted. Article 9 determines that Member States must inform persons enjoying temporary protection about the provisions relating to temporary protection. 2 The initial proposal of the Commission, which required a translation in the official languages of the country of origin and of the host country, was amended, upon proposal of France: the document shall be written in a language likely to be understood by the persons enjoying temporary protection, which may be different from the official language of their home country.127 1

Article 10 To enable the effective application of the Council Decision referred to in Article 5, Member States shall register the personal data referred to in Annex II, point (a), with respect to the persons enjoying temporary protection on their territory. 122

Ad hoc Committee on Refugees and Stateless Persons, Second Session, E/AC.32/SR.42, p. 35–36. Second sentence of draft Article 8(3) COM(2000) 303, p. 32. 124 Council doc. 6914/01, p. 9. 125 Council doc. 13958/00, p. 12. 126 Council doc. 11620/00, p. 12–13; EP A5-0077/2001, OJ 2001 C 343/82, Amendment 20. 127 Draft Article 9, COM(2000) 303, p. 32; Council doc. 13958, p. 13. 123

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Temporary Protection Directive 2001/55/EC

Art. 12

Part D II

The issues laid down in Article 10 were not addressed in the initial proposal of the 1 Commission, and the provision on the registration of the beneficiaries of temporary protection and the creation of a database was added later upon proposal of Germany.128 At the same time, Germany and the Netherlands wanted to make sure that the data protection rules of Community law129 would not complicate the implementation of the present Directive. Reference to the protection of personal data was finally made in the preamble.130 In a statement entered into its minutes, the Council requested the Commission ‘to undertake a study as to the need for the adoption of additional common measures on the processing of personal data referred to in this Directive (…)’.131

Article 11 A Member State shall take back a person enjoying temporary protection on its territory, if the said person remains on, or, seeks to enter without authorisation onto, the territory of another Member State during the period covered by the Council Decision referred to in Article 5. Member States may, on the basis of a bilateral agreement, decide that this Article should not apply. The Commission’s proposal did not contain any provision on readmission, but 1 stipulated that existing rules would apply until the question of free movement of third country nationals in the European Union would be regulated.132 When current Article 11 was inserted in the draft, Italy objected considering readmission to be a matter of cooperation between Member States and not a matter of legal obligation.133 If a beneficiary of temporary protection seeks to enter into, or finds him- or herself illegally in another Member State, the Member State which has given temporary protection has a legal obligation to readmit the person concerned, unless there is a bilateral agreement between the two Member States to disapply the above provision.

Article 12 The Member States shall authorise, for a period not exceeding that of temporary protection, persons enjoying temporary protection to engage in employed or selfemployed activities, subject to rules applicable to the profession, as well as in activities such as educational opportunities for adults, vocational training and practical workplace experience. For reasons of labour market policies, Member States may give priority to EU citizens and citizens of States bound by the Agreement on the European Economic Area and also to legally resident third-country nationals who receive unemployment benefit. The general law in force in the Member States applicable to remuneration, access to social security systems relating to employed or self-employed activities and other conditions of employment shall apply. 128

Council docs. 13958/00, p. 13; 5191/01, p. 13. Directive 95/46/EC of the European Parliament and the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281/31); Council doc. 7964/01, p. 4. 130 Recital 17. 131 Council doc. 9540/01 ADD 1, p. 1. 132 COM(2000) 303, p. 9. 133 Council docs. 6128/01, p. 22 and 7602/01, p. 9. 129

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Part D II Art. 12

Asylum Content

I. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Legal basis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. Drafting history 1

The initial proposal of the Commission was rather generous to persons enjoying temporary protection and granted them equal treatment with refugees with regard to employed or self-employed activities, remuneration, social security and other conditions of employment.134 The CoR and certain Member States objected and recommended instead either equal treatment with aliens (France, the Netherlands, Portugal, Finland), or with asylum seekers (Belgium, Greece, Luxembourg and the Netherlands, changing its previous position), including authorization of work on a case-by-case basis (Austria, which also supported equal treatment with asylum seekers). Spain considered work as ‘impractical’ given the temporary nature of the protection, but was open to access to the labour market for displaced persons who had arrived by organized evacuations.135 The Netherlands proposed access to work after an initial six-month stay in the Union.136

II. Legal basis 2

The Legal Service created another major obstacle by concluding that the Community lacked competence to regulate access to, and conditions of, employment under Article 63 TEC (now Article 78 TFEU), and advised the Commission to present a separate proposal under Article 137 TEC (now Article 153 TFEU).137 However, the Council rejected the Opinion and proceeded with the adoption of the Directive. Germany and Austria made a statement that entered the Council minutes that the two countries ‘agree to Article 12 on condition that the EC has regulatory jurisdiction over the access of persons enjoying temporary protection to the labour market’.138

III. Discretion 3

Overruling the objections of the Commission,139 the Council created a rather restrictive system that discriminates against persons enjoying temporary protection in favour of EU and EEA nationals, certain third country nationals, and refugees.140 This system finds a certain justification in the limited time the beneficiaries are expected to stay in the European Union under the rules of the Directive. Though Article 12 formally introduces an obligation for the Member States to authorize employed or self-employed activities (‘shall’), it gives states wide discretion to limit access to the labour market in favour of EU and EEA citizens and to legally resident third-country nationals who receive unemployment benefits. Persons who enjoy temporary protection and engage in 134

Draft Article 10 and Explanatory Memorandum, COM(2000) 303, p. 17, 33. CoR Opinion 2001/C 357/02 of 13 June 2001, OJ 2001 C 357/6, at 14.2, Council docs. 13958/00, p. 13 and 5191/01, p. 13. 136 Council doc. 6128/01, p. 14. 137 Council docs. 6736/01 and COR 1–3. 138 Council doc. 9540/01 ADD 1, p. 1. 139 Council doc. 8964/01, p. 13. 140 Cf. UNHCR, Annotated Comments on Council Directive 2001/55/EC, p. 11. 135

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Temporary Protection Directive 2001/55/EC

Art. 13

Part D II

the above activities have to comply with the rules of domestic law that regulate the exercise of the profession. For remuneration, access to social security systems relating to the employment, and other conditions of employment, the ‘general law’ in force applies, which should be interpreted to mean ‘national treatment’.

Article 13 1. The Member States shall ensure that persons enjoying temporary protection have access to suitable accommodation or, if necessary, receive the means to obtain housing. 2. The Member States shall make provision for persons enjoying temporary protection to receive necessary assistance in terms of social welfare and means of subsistence, if they do not have sufficient resources, as well as for medical care. Without prejudice to paragraph 4, the assistance necessary for medical care shall include at least emergency care and essential treatment of illness. 3. Where persons enjoying temporary protection are engaged in employed or selfemployed activities, account shall be taken, when fixing the proposed level of aid, of their ability to meet their own needs. 4. The Member States shall provide necessary medical or other assistance to persons enjoying temporary protection who have special needs, such as unaccompanied minors or persons who have undergone torture, rape or other serious forms of psychological, physical or sexual violence. Content I. II. III. IV.

Access to accommodation (Article 13(1)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Social welfare and medical care (Article 13(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fixing the level of aid (Article 13(3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assistance for persons with special needs (Article 13(4)) . . . . . . . . . . . . . . . . . .

1 2 4 5

I. Access to accommodation (Article 13(1)) Member States are expected either to afford accommodation directly to persons 1 enjoying temporary protection, or offer them the financial means to obtain housing. ‘Suitable accommodation’ may take the form of accommodation centres, or other collective structures, or flats.141

II. Social welfare and medical care (Article 13(2)) The standard of ‘suitability’ cannot be determined in abstract and Member States 2 enjoy a broad, but not unlimited, discretion.142 The implementation of the provision depends on the size of the families, the age and gender of the persons concerned. The ‘necessary’ assistance is financial or is offered in kind; it is provided to persons 3 enjoying temporary protection if they do not have sufficient resources. The term ‘financial support necessary for medical care’ of the Commission’s proposal143 was replaced by the term ‘assistance necessary for medical care’. 141

COM(2000) 303, p. 18. Cf. the suggestion of Ireland, considering that the matter ‘should be left to the discretion of the national authorities’, Council doc. 13958/00, p. 14. 143 Draft Article 11(2), COM(2000) 303, p. 33. 142

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Part D II Art. 14

Asylum

III. Fixing the level of aid (Article 13(3)) 4

The meaning of the third paragraph is that when national authorities fix the level of aid to persons enjoying temporary protection, they should consider their income from employed or self-employed activities. Therefore, aid should not be fixed on the same level for all, but should depend on the needs of the individuals concerned.

IV. Assistance for persons with special needs (Article 13(4)) 5

Article 13(4) provides for differentiated treatment of vulnerable groups. To mention is that the original formulation of ‘appropriate’ medical or other assistance was replaced with ‘necessary’.

Article 14 1. The Member States shall grant to persons under 18 years of age enjoying temporary protection access to the education system under the same conditions as nationals of the host Member State The Member States may stipulate that such access must be confined to the state education system. 2. The Member States may allow adults enjoying temporary protection access to the general education system. Content I. Access to education for minors (Article 14(1)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Access to education for adults (Article 14(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2

I. Access to education for minors (Article 14(1)) 1

Article 14(1) introduces a mandatory rule on the national treatment of this category of protected persons with regard to access to education. The Commission’s proposal did not harmonize the meaning of ‘minority’, which depended on the domestic law of each Member State,144 but was subsequently amended as above. ‘Access to the education system’ includes primary, secondary and higher education, as long as the age limit permits. Member States have the discretion to restrict the benefit to the state education system.

II. Access to education for adults (Article 14(2)) 2

Initially, Article 14(2) was also mandatory, but it was subsequently amended into optional. The original proposal encompassed, besides general education, also ‘vocational training, further training and retraining’,145 which were later removed as related to employment and integrated in Article 12.146

144

Draft Article 12(1), ibid. Draft Article 12(2), ibid. 146 Cf. the proposal of Austria using the term ‘apprenticeship’, Council doc. 13958/00, p. 15. 145

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Temporary Protection Directive 2001/55/EC

Art. 15

Part D II

Article 15 1. For the purpose of this Article, in cases where families already existed in the country of origin and were separated due to circumstances surrounding the mass influx, the following persons shall be considered to be part of a family: (a) the spouse of the sponsor or his/her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; the minor unmarried children of the sponsor or of his/her spouse, without distinction as to whether they were born in or out of wedlock or adopted; (b) other close relatives who lived together as part of the family unit at the time of the events leading to the mass influx, and who were wholly or mainly dependent on the sponsor at the time. 2. In cases where the separate family members enjoy temporary protection in different Member States, Member States shall reunite family members where they are satisfied that the family members fall under the description of paragraph 1(a), taking into account the wish of the said family members. Member States may reunite family members where they are satisfied that the family members fall under the description of paragraph 1(b), taking into account on a case by case basis the extreme hardship they would face if the reunification did not take place. 3. Where the sponsor enjoys temporary protection in one Member State and one or some family members are not yet in a Member State, the Member State where the sponsor enjoys temporary protection shall reunite family members, who are in need of protection, with the sponsor in the case of family members where it is satisfied that they fall under the description of paragraph 1(a). The Member State may reunite family members, who are in need of protection, with the sponsor in the case of family members where it is satisfied that they fall under the description of paragraph 1(b), taking into account on a case by case basis the extreme hardship which they would face if the reunification did not take place. 4. When applying this Article, the Member States shall taken into consideration the best interests of the child. 5. The Member States concerned shall decide, taking account of Articles 25 and 26, in which Member State the reunification shall take place. 6. Reunited family members shall be granted residence permits under temporary protection. Documents or other equivalent evidence shall be issued for that purpose. Transfers of family members onto the territory of another Member State for the purposes of reunification under paragraph 2, shall result in the withdrawal of the residence permits issued, and the termination of the obligations towards the persons concerned relating to temporary protection, in the Member State of departure. 7. The practical implementation of this Article may involve cooperation with the international organisations concerned. 8. A Member State shall, at the request of another Member State, provide information, as set out in Annex II, on a person receiving temporary protection which is needed to process a matter under this Article. Content I. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Definition of family (Article 15(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. General conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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2. Nuclear family (Article 15(1)(a)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Extended family (Article 15(1)(b)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Separate family members in different Member States (Article 15(2)). . . . IV. Family members outside the EU territory (Article 15(3)) . . . . . . . . . . . . . . . . . V. Consideration of child interests (Article 15(4)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI. Place of reunification (Article 15(5)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VII. Residence permits of family members (Article 15(6)) . . . . . . . . . . . . . . . . . . . . . .

3 6 9 13 14 15 18

I. Drafting history 1

The Member States and the Commission had difficulties in defining both the protected unit (nuclear or extended family), as well as the main coordinates of family reunification under the particular conditions of temporary protection. The Commission had proposed a liberal system based on a broad and ‘functional’ conceptualization of family, tailored to the situation of displacement, while most Member States preferred a more limited scope of protection, with discretion of the Member States in cases of more distant relatives.147 Family reunification is a right that can give rise to legal challenge under Article 29.

II. Definition of family (Article 15(1)) 1. General conditions 2

Families having the right of reunification are only those that existed in the country of origin before the displacement. Families established after the persons concerned had crossed the borders of the home state are not protected under the Directive. Furthermore, there should be a causal link between the physical separation and the circumstances surrounding the mass influx. These circumstances are not limited to the displacement itself, but extend also to the armed conflict, endemic violence, or human rights violations at a time in which the members of the family had not yet left the country. If the spouses or unmarried partners had already separated for personal reasons in the home country, there should be in principle no case for reunification. The concept of family in this Directive is distinct from the definitions in the Family Reunification Directive 2003/86/EC and Asylum Qualification Directive 2011/95/EU.148

2. Nuclear family (Article 15(1)(a)) This provision gives the definition of the nuclear family. With regard to children, the Commission’s proposal did not refer to the minor unmarried children, but to the unmarried and dependent children, without regard to their age. The Commission’s definition was broader than the one adopted by the Council.149 4 Unmarried couples can invoke the right to reunification only if aliens law or practice in the Member State treats married and unmarried couples in a comparable manner. Therefore, differences in the treatment between Member States still remain in this area, which was not harmonized by the Directive. Minor children are protected without regard to whether they have been born in or out of wedlock, or adopted. 3

147 See draft Article 13, COM(2000) 303, p. 33–34, and Council docs. 10209/00, p. 4; 13958/00, p. 16; 5191/01, p. 16–17; 6128/01, p. 17–18; 7602/01, p. 11–12. 148 Family Reunification Directive 2003/86/EC, Article 2(f), p. 9–12; Asylum Qualification Directive 2004/83/EC, Article 2(h), 23. 149 Draft Article 13(1)(b), COM(2000) 303, p. 34. The term ‘dependent’ in the Commission’s proposal covered apparently all unmarried minors; if the children were not minors, but unmarried, only those who were ‘objectively unable to meet their own needs or because of their state of health’, ibid., p. 19.

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Temporary Protection Directive 2001/55/EC

Art. 15

Part D II

For the concept of the ‘sponsor’, see Article 2(h).

5

3. Extended family (Article 15(1)(b)) The Directive takes a different approach in respect to the extended family in 6 comparison to the Family Reunification Directive 2003/86/EC, giving the preference to a more functional approach in the definition of the protected persons instead of their precise enumeration. The protected persons are ‘other close relatives’ distinct from the core family under lit. a). The concept of ‘close relatives’ obviously excludes third persons, for example servants, who cohabit with the members of the family, even if they have developed a strong personal bond with them. Close relatives must have ‘lived together as part of the family unit’ in order to be 7 within the scope of the provision. The terms ‘lived together’ and ‘unit’ describes family not as an exclusively legal institution, but also as the social institution of ‘household’ with potentially fluid external boundaries. The close relatives should have been individually dependant on the sponsor at the time of the existence of the family unit. Thus, close relatives who had settled on the same land or shared the same building structure but, in fact, lived independently from each other, cannot invoke family reunification. The family unit should have existed not merely at the time of the displacement, but at 8 the time of the events ‘leading to’ the mass influx; therefore, the ‘unit’ should not have been created under the pressure of the displacement itself.

III. Separate family members in different Member States (Article 15(2)) Article 14(2) regulates issues relevant to family reunification if the family members 9 find themselves in different Member States, while Article 15(3) deals with situations in which the sponsor enjoys protection in the Union, but other members of the family have not arrived in a Member State yet. The first sentence of Article 15(2) introduces a right to reunification of nuclear family, and the second sentence establishes the discretion of the Member State for the reunification of members of the extended family. In the Commission’s proposal, in both cases the Member States had the obligation to reunite families, without distinction between nuclear and extended family.150 The Member States act in view of the family reunification ‘where they are satisfied’ 10 that the conditions of Article 15(1)(a) or (b) are fulfilled. The Commission’s proposal clarified that the absence of documentation was not an obstacle in itself and underscored that Member States should take account of facts, circumstances, evidence, and credibility of statements submitted.151 Unfortunately, these brief guidelines were removed from the final text, with the consequence that Member States can evaluate the existing evidence without any common ‘minimum standards’. Member States should decide on the reunification of the nuclear family ‘taking into 11 account the wish of the said family members’. The need to verify the clear consent of the other members of the family, as was formulated in the Commission’s proposal,152 was thus substantially watered down, and appears as one factor among others. Nonetheless, reunification of family members, in particular of women, against their will would violate basic human rights standards.

150

Draft Article 13(1), COM(2000) 303, p. 33–34. Draft Article 13(4), ibid., p. 34. 152 ‘The Member States shall establish that the various members of the family agree to this reunification’, second sentence of the second paragraph draft Article 13(5), ibid. 151

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Asylum

Reunification of members of the extended family is discretionary, but the Member States should take into account situations of ‘extreme hardship’.

IV. Family members outside the EU territory (Article 15(3)) 13

In paragraph 3, the sponsor enjoys temporary protection in a Member State, but the other family members are either in the State of origin or in a third State, which is not an EU member. The obligation of the Member State to proceed with the reunification of nuclear family is linked here to the ‘need of protection’ of the family members who are not yet in the European Union. Close relatives who live in safety in another part of their home country, or who have found temporary protection in a third country, or in safe refugee camps with UNHCR presence in that third-country, or do not belong to the threatened groups enumerated in the Council Decision under Article 5(3)(a) are not eligible for family reunification. The discretion to reunite members of the extended family is even larger than under paragraph 2, because the responsibility of the host Member State is activated only if the said persons are both in need of protection, and would be in extreme hardship, if the reunification would not take place.

V. Consideration of child interests (Article 15(4)) 14

The Directive does not mention the UN Convention on the Rights of the Child (CRC), but, as all 27 Member States of the EU have ratified this Convention, it is obvious that they should take full account of it by the transposition and implementation of the Directive.153

VI. Place of reunification (Article 15(5)) According to the Commission’s proposal, the members of the family would ‘be reunited in the host Member State of their choice’.154 The CoR criticized this alternative because it might upset the burden-sharing among the Member States and create secondary movements.155 Austria asked for a revision in situations in which the reception capacity of a Member State was reached.156 Thereupon the provision was amended and took its final form, over the objections of the Commission that this system will considerably delay and complicate the reunification process.157 16 The decision, in which Member State the family will be reunited, shall be taken by the Member States concerned, that is by the Member States of residence of the separated family members, taking into account Article 25 and 26 on solidarity. However, the consent of the protected persons is a main element of the system of Chapter VI, and it should be also an important factor by the family reunification. The structure of paragraph 5 implies that the will of the family members should be in principle respected, unless serious reasons advocate for the opposite. Because of the ‘minimum 15

153 UNTS, Vol. 1577, p. 3. Cf. also Committee on the Rights of the Child, General Comment No. 5 (2003) on General Measures of Implementation of the Convention on the Rights of the Child, CRC/GC/ 2003/5, 27 November 2003. Amendment 25 of the EP proposed unsuccessfully the mentioning of the CRC in what became Article 16 of the Directive, A5-0077/2001, OJ 2001 C 343/82. 154 First sentence of the draft Article 13(5), COM(2000) 303, p. 34. 155 CoR Opinion 2001/C 357/02 of 13 June 2001, OJ 2001 C 357/6, at 16.2. 156 Council doc. 6128/01, p. 18. 157 Council doc. 7964/01, p. 6.

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Temporary Protection Directive 2001/55/EC

Art. 16

Part D II

standards’ character of the provision, Member States may decide by the transposition of the Directive to respect the will of the family members under any circumstances, as long as they decide to reunite in their own territory. No deadline is foreseen within which a final decision on the application for 17 reunification should be reached, and this is a major weakness of the system.158

VII. Residence permits of family members (Article 15(6)) Paragraph 6 was necessary because beneficiaries of temporary protection enjoy no 18 mobility in the EU. Residence permits issued for the family members who are reunited in another Member State are withdrawn, and new ones are issued by the Member State where the reunification takes place. Furthermore, the protection obligation of the Member State of the previous residence expires and is transferred to the Member State of the new residence.

Article 16 1. The Member States shall as soon as possible take measures to ensure the necessary representation of unaccompanied minors enjoying temporary protection by legal guardianship, or, where necessary, representation by an organisation which is responsible for the care and well-being of minors, or by any other appropriate representation. 2. During the period of temporary protection Member States shall provide for unaccompanied minors to be placed: (a) with adult relatives; (b) with a foster-family; (c) in reception centres with special provisions for minors, or in other accommodation suitable for minors; (d) with the person who looked after the child when fleeing. The Member States shall take the necessary steps to enable the placement. Agreement by the adult person or persons concerned shall be established by the Member States. The views of the child shall be taken into account in accordance with the age and maturity of the child. Content I. Representation (Article 16(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Placement (Article 16(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. Representation (Article 16(1)) This provision introduces measures for the representation and placement of 1 unaccompanied minors, taking account of the vulnerability of this category of persons and the risks associated with trafficking.159 The Commission’s proposal employed the phrase ‘necessary measures…to ensure the 2 representation’,160 and was later amended into ‘necessary measures…to ensure the 158

Cf. EP A5-0077/2001, OJ 2001 C 343/82, Amendment 23. ESC Opinion 2001/C 155/06, OJ 2001 C 155/21, at 2.8. 160 Draft Article 14(1), COM(2000) 303, p. 34. 159

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Part D II Art. 17

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appropriate representation’,161 to be finalized into ‘measures to ensure the necessary representation’. The meaning is that minors are to be legally represented as far as this is necessary under the circumstances of displacement.162 No time limit is foreseen for the taking of the decision on representation,163 and the more flexible formula of ‘as soon as possible’ was given the preference.

II. Placement (Article 16(2)) 3

Representation or legal guardianship as above should be distinguished from placement, which indicates the actual assignment of the unaccompanied minor to the responsibility of an adult person or a foster family. ‘Adult relatives’ in the meaning of the provision are apparently persons belonging to the extended family of the minor (a), while ‘the person who looked after the child when fleeing’ is a third person, probably enjoying temporary protection as well (d). A foster family can be a family in the host country, or a family among the persons enjoying temporary protection, given that the Directive does not make any distinction (b). The minor does not give his or her consent, but their views should be taken into account, depending on the factors referred to by the provision.

CHAPTER IV Access to the asylum procedure in the context of temporary protection Article 17 1. Persons enjoying temporary protection must be able to lodge an application for asylum at any time. 2. The examination of any asylum application not processed before the end of the period of temporary protection shall be completed after the end of that period. Content I. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Access to asylum procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. Drafting history 1

Draft Article 16 of the proposal of the Commission looks similar to Article 17 of the Directive, as far as it guaranteed access to the procedure for the determination of refugee status. It differed from Article 17 by directly enabling Member States to suspend both the lodging of applications, and the further processing of those already lodged. The system proposed by the Commission guaranteed access to the procedures ‘no later than the end of the temporary protection’.164 This was an acceptable solution for the UNHCR,165 but not for some Member States that expressed strong reservations with regard to the implications of the suspension and the compatibility of this system with 161

Council doc. 6552/01, p. 10. Cf. the suggestion of Germany and Finland (‘where necessary’), Council doc. 5191/01, p. 18. 163 As proposed by Greece, Council doc. 13958/00, p. 18. 164 COM(2000) 303, p. 21, 35. 165 Council doc. 11620/00, p. 7, 16. 162

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Temporary Protection Directive 2001/55/EC

Art. 18

Part D II

the Geneva Convention, though the majority was in favour of the possibility of suspension.166

II. Access to asylum procedures In the compromise reached by the Member States,167 persons enjoying temporary 2 protection must be able to lodge an application at any time; thus, suspension of access to the procedure is not permitted (para. 1). The provision acknowledges the possibility that asylum applications may not have been processed before the end of the period of temporary protection (para. 2), but without directly resolving the question, whether this may be due only to the factual overburdening of the asylum systems of the Member States, or also to a formal suspension of the processing of procedures. The overall course of the deliberations on this issue implies that suspension of the 3 processing of applications was not excluded,168 and indeed certain Member States have made use of that possibility by the transposition of the Directive.169

Article 18 The criteria and mechanisms for deciding which Member State is responsible for considering an asylum application shall apply. In particular, the Member State responsible for examining an asylum application submitted by a person enjoying temporary protection pursuant to this Directive, shall be the Member State which has accepted his transfer onto its territory. Content I. Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Responsibility for considering asylum applications. . . . . . . . . . . . . . . . . . . . . . . . . .

1 2

I. Drafting history The proposal of the Commission provided that the responsibility for considering 1 asylum applications would be determined according to the Dublin system.170 In contrast, the UNHCR and the EP suggested that the host state should be responsible for the applications.171 Commenting on the Commission’s proposal, Italy asked, which Member State would be responsible in case of redistribution of beneficiaries of temporary protection across the EU.172 166 Council docs. 6303/01, p. 2–3 and 6709/01, p. 3–4. Spain, France, Belgium, Greece, and Portugal were among the countries opposing suspension. Significantly, Greece was concerned with the implications of the late submission of asylum applications that would prolong the presence of the applicants in the country. Austria, Germany, Ireland, Italy, Luxembourg, the Netherlands, Finland, Sweden and the UK favoured suspension. See Council docs. 11650/00, p. 2 and 6128/01, p. 21. 167 Agreement was gradually reached, see Council docs. 6914/01, p. 14; 7602/01, p. 15 and 7964/01, p. 20. 168 So Kerber, EJML 4 (2002), p. 193, 207. 169 Noll/Gunneflo, Odysseus Synthesis Report, p. 49–50. 170 COM(2000) 303, p. 21. 171 Council doc. 11620/00, p. 6; EP A5-0077/2001, OJ C 343/82, Amendment 26. 172 Council doc. 13958/00, p. 21. Cf. also the amendment proposed by Italy, Council doc. 6128/01, p. 22.

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Part D II Art. 19

Asylum

II. Responsibility for considering asylum applications 2

Article 18 gives expression to two principles. The first is that the existing rules for the responsibility for considering the asylum applications should apply (first sentence). The second is that if a State has accepted the transfer of a displaced person onto its territory, it is also responsible for considering the application (second sentence). ‘Transfer’ is deemed to exist in family reunification, and in reallocation of displaced persons among Member States in application of the solidarity principle (Article 26(1)).

Article 19 1. The Member States may provide that temporary protection may not be enjoyed concurrently with the status of asylum seeker while applications are under consideration. 2. Where, after an asylum application has been examined, refugee status or, where applicable, other kind of protection is not granted to a person eligible for or enjoying temporary protection, the Member States shall, without prejudice to Article 28, provide for that person to enjoy or to continue to enjoy temporary protection for the remainder of the period of protection. Content I. Temporary protection and asylum seeker status (Article 19(1)) . . . . . . . . . . II. Temporary protection, refugee status, subsidiary status (Article 19(2)) .

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I. Temporary protection and asylum seeker status (Article 19(1)) 1

As long as the consideration of asylum applications is suspended under Article 17(2), this provision finds no application. If there is no suspension, the Member States have the option to provide that the applicant shall only enjoy the legal status of asylumseeker,173 but not temporary protection. The majority of the Member States have chosen to enable the persons concerned to enjoy the status of asylum seeker concurrently with temporary protection.174

II. Temporary protection, refugee status, subsidiary status (Article 19(2)) 2

If asylum or subsidiary protection status is granted to the applicant,175 he shall not enjoy temporary protection any more. If the application is rejected, and the applicant is either eligible, or enjoys temporary protection, the Member States shall provide for him to enjoy, or continue to enjoy, temporary protection. If the applicant’s residence permit under Article 8 had been revoked or suspended, and replaced with a document certifying the status of asylum-seeker under Article 6 para. 1 Asylum Reception Conditions Directive 2013/33/EU, the Member State shall re-issue, or restore the validity of, the former, as a matter of formality. 173

See former Asylum Reception Directive 2003/9/EC. Noll/Gunneflo, Odysseus Synthesis Report, p. 51–52. 175 Former Asylum Qualification Directive 2004/83/EC. 174

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Temporary Protection Directive 2001/55/EC

Art. 20

Part D II

If the asylum application has been rejected on the basis of exclusion grounds under 3 Article 12 or 17 Asylum Qualification Directive 2011/95/EU, temporary protection may be refused, as well. In this case, exclusion under this Directive must be determined by a separate act taken under Article 28 (see below Article 28 MN 2).

CHAPTER V Return and measures after temporary protection has ended Article 20 When the temporary protection ends, the general laws on protection and on aliens in the Member States shall apply, without prejudice to Articles 21, 22 and 23. Content I. General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Status when the temporary protection ends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Refugee status or subsidiary protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Immigration status. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. New arrivals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 2 2 3 5

I. General remarks When the temporary protection ends, the persons that had enjoyed protection do not 1 find themselves in a legal limbo, but cross-over to a provisional or permanent legal status. The Directive introduces the principle that, without prejudice to voluntary or enforced return, or extension of stay under Article 21–23, the general laws on protection and aliens shall apply. Here are some alternatives:

II. Status when the temporary protection ends 1. Refugee status or subsidiary protection Persons who had already lodged an asylum application that had not been processed 2 until the end of the temporary protection according to Article 17(2)2, enjoy the status of asylum-seekers. If they are recognized as refugees or as beneficiaries of subsidiary protection, they are entitled to stay in the host country under the respective status. Persons who apply for refugee or subsidiary status after the end of temporary protection can stay provisionally in the host country as asylum-seekers. If the applicants request constitutional asylum, their status will be decided according to the rules of the domestic law of the Member State.

2. Immigration status The legal status of persons who have not asked for protection, or whose application 3 was rejected, but wish to stay in the host country shall be decided under the ordinary immigration law. The Member State may issue an authorization for residence and a related work permit, granting the applicants the status of legal immigrants. Deportation proceedings which had been suspended when the Decision under 4 Article 5 took effect (see above Article 5 MN 6) can resume.

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Part D II Art. 21

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III. New arrivals 5

If displaced persons still arrive after the end of temporary protection, the ordinary law of protection or of entry of non-citizens in the country shall apply. New arrivals from the area or region of conflict shall be considered either as asylum-seekers, or legal or illegal immigrants, depending on their individual circumstances.176

Article 21 1. The Member States shall take the measures necessary to make possible the voluntary return of persons enjoying temporary protection or whose temporary protection has ended. The Member States shall ensure that the provisions governing voluntary return of persons enjoying temporary protection facilitate their return with respect for human dignity. The Member State shall ensure that the decision of those persons to return is taken in full knowledge of the facts. The Member States may provide for exploratory visits. 2. For such time as the temporary protection has not ended, the Member States shall, on the basis of the circumstances prevailing in the country of origin, give favourable consideration to requests for return to the host Member State from persons who have enjoyed temporary protection and exercised their right to a voluntary return. 3. At the end of the temporary protection, the Member States may provide for the obligations laid down in CHAPTER III to be extended individually to persons who have been covered by temporary protection and are benefiting from a voluntary return programme. The extension shall have effect until the date of return. Content I. II. III. IV.

Drafting history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Human dignity and voluntary return (Article 21(1)). . . . . . . . . . . . . . . . . . . . . . . Voluntary return during temporary protection (Article 21(2)) . . . . . . . . . . . Voluntary return at the end of temporary protection (Article 21(3)). . . .

1 2 5 6

I. Drafting history 1

This provision regulates the voluntary return of persons either during the period of temporary protection, or after temporary protection ends. Germany, supported by the Netherlands, had proposed to add that ‘voluntary return shall take precedence over enforced expulsion’, but this proposal was not accepted. The second part of the proposal, adding the terms ‘with human dignity’,177 which did not exist in the Commission’s proposal, was integrated in Article 21(1).

II. Human dignity and voluntary return (Article 21(1)) 2

The formulation of the second sentence of Article 21(1) creates the impression that ‘respect for human dignity’ refers only to those individuals who exercise the right of 176 177

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Temporary Protection Directive 2001/55/EC

Art. 22

Part D II

voluntary return during the time of temporary protection, but not to those whose temporary protection has ended. The clause should be interpreted to cover both cases, because there is no apparent reason to differentiate. Human dignity refers to the manner in which return is conducted, but its signifi- 3 cance in voluntary return is more limited than in Article 22(1) on enforced return. As long as the decision is not taken by the persons concerned ‘in full knowledge of the facts’, or without exploratory visits, if they were necessary, the return cannot be considered as ‘voluntary’. The same happens if there is any measure of compulsion or interference on the side of the authorities. At the heart of Article 21(1) lies therefore the voluntary character of the decision, not the dignity component. Exploratory visits presume that the protected persons may return to the host Member 4 State without any further administrative obstacles.

III. Voluntary return during temporary protection (Article 21(2)) Displaced persons who have exercised their right to voluntary return during the period 5 of temporary protection may face serious challenges in the country of origin and may ask to return to the host country. Although it is not mandatory for the host Member State to re-admit these persons it ‘shall … give favourable consideration’ to these requests, and it is expected to allow them to return, unless there are serious reasons not to do so.

IV. Voluntary return at the end of temporary protection (Article 21(3)) Persons covered by voluntary return programmes may benefit from an extension of 6 the benefits of the temporary protection system, but this is optional for the Member States. Under this provision, these persons will not have to stay in the host Member State under the general immigration rules of provisional stay until their return to the country of origin, but may enjoy the benefits of Articles 9–16, even if the period of temporary protection has ended.

Article 22 1. The Member States shall take the measures necessary to ensure that the enforced return of persons whose temporary protection has ended and who are not eligible for admission is conducted with due respect for human dignity. 2. In cases of enforced return, Member States shall consider any compelling humanitarian reasons which may make return impossible or unreasonable in specific cases. Content I. Enforced return (Article 22(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Humanitarian exception (Article 22(2)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4

I. Enforced return (Article 22(1)) In the initial proposal of the Commission, there was no provision on enforced return, 1 which was merely implicit in draft Article 20.178 This provision was later amended and became Article 22(2).179 178 179

COM(2000) 303, p. 22, 36. Article 22 took its final form (almost) in Council doc. 7602/01, p. 17.

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Part D II Art. 22

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‘Enforced return’ means return against the will of the person, following a decision on expulsion or deportation. The Member State can take this decision if three conditions are fulfilled: a) the temporary protection has ended, b) the person is not eligible to be legally admitted to the country for some other reason and c) the situation in the country of origin permits the safe and durable return. This last condition is the basis for the Council Decision that ends the period of temporary protection, under Article 6(2), but it should be applied by analogy also to enforced returns, if the maximum duration has been reached and the temporary protection was terminated without any Council Decision. The CoR even put forward the idea of a Council Decision under Article 6(1)(a) settling the question whether the conditions in the country of origin enable the return of displaced persons.180 3 The enforced return is to be conducted with ‘due respect for human dignity’, which means return with due respect to the rights of the individuals concerned, without harassment, arbitrary detention, physical threats, intimidation or discrimination, as well as without risk of injury or death.181 If constraining measures have to be employed, they should be proportionate to the objective, and limited to the necessary minimum for the implementation of deportation. 2

II. Humanitarian exception (Article 22(2)) The Commission’s Explanatory Memorandum on draft Article 20 listed certain compelling humanitarian reasons, such as granting a subsidiary form of protection, or showing a degree of tolerance pending expulsion or offering a lasting solution such as resettlement or a permanent or long-term residence permit when the armed conflict or persistent violation of human rights make the prospects of return unrealistic.182 In some of these cases protection can now be claimed under the Asylum Qualification Directive 2011/95/EU, while humanitarian cases related to health or education for children are dealt with in Article 23. Certain delegations had indeed argued that the draft article was superfluous,183 because it could be covered by the application of the general law on protection and on aliens (Article 20). 5 Despite these objections, the practical significance of Article 22(2) is not negligible, because it requests Member States to examine whether a long-term or permanent solution through resettlement might be preferable in individual cases, including age or vulnerability. The decision of the Council not to include draft Article 23 on resettlement programs in the Directive (see above Article 1) is not incompatible with a provision that asks Member States to consider the possibility of resettlement in individual ‘hardship’ cases. 6 The initial phrasing of draft Article 20 (‘impossible or unrealistic’)184 was amended into ‘impossible or unreasonable’.185 4

180

CoR Opinion 2001/C 357/02 of 13 June 2001, OJ 2001 C 357/6, at 17.3. See Ka¨lin, German Yearbook of International Law (44) 2001, p. 202, 229 et seqq., Noll/Gunneflo, Odysseus Synthesis Report, p. 56–57. 182 COM(2000) 303, p. 22. 183 Council doc. 6128/01, p. 24. 184 COM(2000) 303, p. 36. 185 Following the formulation of Recommendation R (2000) 9 on Temporary Protection of the Committee of Ministers of the Council of Europe, para 14, see Council doc. 6128/01, p. 24. 181

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Temporary Protection Directive 2001/55/EC

Art. 23

Part D II

Article 23 1. The Member States shall take the necessary measures concerning the conditions of residence of persons who have enjoyed temporary protection and who cannot, in view of their state of health, reasonably be expected to travel; where for example they would suffer serious negative effects if their treatment was interrupted. They shall not be expelled so long as that situation continues. 2. The Member States may allow families whose children are minors and attend school in a Member State to benefit from residence conditions allowing the children concerned to complete the current school period. Article 23(1) introduces a mandatory humanitarian exception for reasons of health. 1 The initial text of the Commission referred to persons ‘with special needs such as medical and psychological treatment’.186 Upon proposal of the Netherlands, the term ‘state of health’ was inserted,187 which seems to include both components. These persons can stay in the host country not only as long as they are not expected to travel, but also as long as the interruption of their treatment might cause negative effects to their health. The humanitarian exception of Article 23(2) enabling the prolongation of the stay 2 until the end of the current school period is optional for the Member States.

CHAPTER VI Solidarity Preliminary comments on Chapter VI (Articles 24–26) There have been extensive and vigorous debates in the Council on Articles 24–26 1 regarding solidarity, due to the objections certain Member States had put forward. At a relatively advanced stage of the deliberations (April 2001), Austria even submitted a reservation for the entire Chapter asking for enhanced solidarity in favour of States facing strong pressure in situations of mass influx.188 After political agreement was reached, the Austrian delegation made the longest statement that entered the Council’s minutes.189 Community solidarity has two components, financial solidarity (Article 24) and reception solidarity (Articles 25–26).190 France suggested that by assessing the contribution of the Member States other types 2 of action should be taken into account, including the military contribution to the restoration of peace, participation in civil protection units, or aid to NGOs in the specific crisis,191 but no consensus was reached on this proposal. The ‘double voluntary action’ is another principle linked to solidarity, but it was 3 conceived differently by the Commission and by France. For the Commission, it meant that the host Member States determine their reception capacity, and the displaced persons express their will to be received by a certain Member State.192 For France, 186

Draft Article 22(1), COM(2000) 303, p. 36. Council doc. 6128/01, p. 26. 188 Council docs. 7602/01, p. 18; 8964/01, p. 4. 189 Council doc. 9540/01 ADD 1, p. 2. 190 Recital 20. See also Article 80 TFEU. 191 Council docs. 8510/00, p. 5; 11650, p. 7. 192 COM(2000) 303, p. 23. 187

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Part D II Art. 25

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followed by Portugal, it was about displaced persons deciding to arrive, or be transferred, to a Member State, and for the Member State to decide whether it would admit them, taking into consideration public order and national security.193 Article 25 follows the version of the Commission, but the exclusion clause of Article 28 took the concerns on security and order into account.

Article 24 The measures provided for in this Directive shall benefit from the European Refugee Fund set up by Decision 2000/596/EC, under the terms laid down in that Decision. 1

Article 24 formulates the principle of financial solidarity between Member States.194 Financing of temporary protection by the ERF alone was insufficient for Austria, and in its statement that entered the Council’s minutes it asked for additional funding for Member States which might be ‘particularly severely affected’ by the mass influx.195

Article 25 1. The Member States shall receive persons who are eligible for temporary protection in a spirit of Community solidarity. They shall indicate – in figures or in general terms – their capacity to receive such persons. This information shall be set out in the Council Decision referred to in Article 5. After that Decision has been adopted, the Member States may indicate additional reception capacity by notifying the Council and the Commission. This information shall be passed on swiftly to UNHCR. 2. The Member States concerned, acting in cooperation with the competent international organisations, shall ensure that the eligible persons defined in the Council Decision referred to in Article 5, who have not yet arrived in the Community have expressed their will to be received onto their territory. 3. When the number of those who are eligible for temporary protection following a sudden and massive influx exceeds the reception capacity referred to in paragraph 1, the Council shall, as a matter of urgency, examine the situation and take appropriate action, including recommending additional support for Member States affected. Content I. Reception capacity (Article 25 (1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. The ‘will to be received’ (Article 25(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Exceeding the reception capacity (Article 25(3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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I. Reception capacity (Article 25 (1)) 1

Article 25 articulates the meaning of reception solidarity, as Member States indicate their capacity to receive displaced persons. The capacity can be indicated either in specific figures or in general terms. Information on the reception capacity of each Member State shall be included in the Council Decision according to Article 5(3)(c). 193

Council docs. 8510/00, p. 3; 6128/01, p. 28. Council doc. 8964/01, p. 4. 195 Council doc. 9540/01 ADD 1, p. 2. 194

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Temporary Protection Directive 2001/55/EC

Art. 26

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In a statement entered into the minutes, the Council declared that by announcing its 2 reception capacity, a Member State ‘may take into account the number of third country nationals who have already sought international protection or who have otherwise recently arrived on its territory’.196 In its statement that also entered the Council’s minutes, Austria interpreted solidarity 3 ‘as meaning an equal sharing of the burden between all Member States in the event of mass influx’. According to the statement, the main criterion for determining the country’s reception capacity would be ‘the number of displaced persons to be received in proportion to the total population of Austria’, as compared to that of the other Member States.197

II. The ‘will to be received’ (Article 25(2)) This is an aspect of the double voluntary action – eligible persons cannot be forced to 4 be received in a certain Member State. Article 26(1) uses the term ‘consent’ instead of ‘will’, but there is no substantive difference between the two terms. The normative context may be different: according to an author, Article 25(2) intends to make sure that the Directive does not offer incentives to authoritarian regimes to expel their own people,198 while, obviously this question does not arise in Article 26. It is doubtful, however, whether this reasoning makes much sense, taking into account that mass displacement is by definition forcible population movement, even if it appears as an ongoing ‘voluntary exodus’ of the persecuted groups.

III. Exceeding the reception capacity (Article 25(3)) If the mass influx exceeds suddenly the capacity of the European Union and the 5 Member States, the Council shall (a) examine the situation and (b) take appropriate action. It is not clear, what kind of action the Council would take in these circumstances. Germany suggested a specific procedure to be followed modelled on Article 5, with a proposal of the Commission followed by a Decision of the Council, and obviously, a second pledging procedure by the Member States, but no consensus could be reached.199 Moreover, it is not clear whether the ‘appropriate action’ and ‘additional support’ 6 entail additional financial support exclusively, or they additionally address the reallocation of displaced persons across the Union. It seems that either alternative is possible. Transferral of displaced persons to other Member States can be established on the legal basis of Article 25(3) and 26. ‘Additional support’ should be integrated into a recommendatory act of the Council, but not into a binding Decision.

Article 26 1. For the duration of the temporary protection, the Member States shall cooperate with each other with regard to transferral of the residence of persons enjoying temporary protection from one Member State to another, subject to the consent of the persons concerned to such transferral. 196

Council doc. 9540/01 ADD 1, p. 2. Ibid. 198 Kerber, EJML 4 (2002), p. 193, 212. 199 Council doc. 6914/01, p. 17; cf. also 6709/01, p. 4. 197

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Part D II Art. 28

Asylum

2. A Member State shall communicate requests for transfers to the other Member States and notify the Commission and UNHCR. The Member States shall inform the requesting Member State of their capacity for receiving transferees. 3. A Member State shall, at the request of another Member State, provide information, as set out in Annex II, on a person enjoying temporary protection which is needed to process a matter under this Article. 4. Where a transfer is made from one Member State to another, the residence permit in the Member State of departure shall expire and the obligations towards the persons concerned relating to temporary protection in the Member State of departure shall come to an end. The new host Member State shall grant temporary protection to the persons concerned. 5. The Member States shall use the model pass set out in Annex I for transfers between Member States of persons enjoying temporary protection. 1

This article is also an expression of the principle of reception solidarity, if some Member States feel strong pressures due to mass influx, as well as of the principle of voluntary action.200 Transferral of the residence of protected persons should take place with their consent. As no free movement of beneficiaries of temporary protection between Member States is foreseen, the residence permit in the Member State of departure shall expire, and a new residence permit should be issued by the new host Member State. Annex I model pass is a transfer-only travel document.

CHAPTER VII Administrative cooperation Article 27 1. For the purposes of the administrative cooperation required to implement temporary protection, the Member States shall each appoint a national contact point, whose address they shall communicate to each other and to the Commission. The Member States shall, in liaison with the Commission, take all the appropriate measures to establish direct cooperation and an exchange of information between the competent authorities. 2. The Member States shall, regularly and as quickly as possible, communicate data concerning the number of persons enjoying temporary protection and full information on the national laws, regulations and administrative provisions relating to the implementation of temporary protection.

CHAPTER VIII Special provisions Article 28 1. The Member States may exclude a person from temporary protection if: (a) there are serious reasons for considering that: (i) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; 200

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COM(2000) 303, p. 23–24.

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Temporary Protection Directive 2001/55/EC

Art. 28

Part D II

(ii) he or she has committed a serious non-political crime outside the Member State of reception prior to his or her admission to that Member State as a person enjoying temporary protection. The severity of the expected persecution is to be weighed against the nature of the criminal offence of which the person concerned is suspected. Particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes. This applies both to the participants in the crime and to its instigators; (iii) he or she has been guilty of acts contrary to the purposes and principles of the United Nations; (b) there are reasonable grounds for regarding him or her as a danger to the security of the host Member State or, having been convicted by a final judgment of a particularly serious crime, he or she is a danger to the community of the host Member State. 2. The grounds for exclusion referred to in paragraph 1 shall be based solely on the personal conduct of the person concerned. Exclusion decisions or measures shall be based on the principle of proportionality. Content I. Exclusion – General remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Exclusion grounds (Article 28(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Assessment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 3 4

I. Exclusion – General remarks Exclusion is discretionary (‘may-clause’), and is limited to the reasons referred to in 1 this article. Additional grounds of exclusion, linked, for instance, to false information or misrepresentation of facts by the displaced persons, or to inflows of persons exceeding the declared reception capacity under Article 5, is not permissible.201 Member States have the legal authority to deny admission to persons who do not belong to the protected groups, but this is rather an exercise of inherent powers related to the scope of the Directive and to the application of Article 5,