EU Immigration and Asylum Law 9781509957323, 9783406779695

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Reemers Publishing Services GmbH O:/Beck/978_3_406_77969_5_Thym/3d/02_Roemer_Preface.3d from 11.11.2021 11:28:26 3B2 9.1.580; Page size: 160.00mm  240.00mm

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

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

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

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List of Authors Carolin Arévalo, Lawyer at Agora Cultural and Education Center, Legal Support to the AntiDiscrimination Offices in North Rhine Westphalia, Germany [Chapter 8 Articles 1-5] Hemme Battjes, Prof. Dr., Professor at the VU University Amsterdam/The Netherlands [Chapter 20 Articles 20-42] Jonas Bornemann, LL.M., Research Assistant at the Chair for Public Law, International and European Law, University of Konstanz/Germany [Chapter 8] Harald Dörig, Prof. Dr., Judge at the Federal Administrative (Supreme) Court (retired), Leipzig/ Germany, Professor at the University of Jena/Germany [Chapter 20 Articles 1-10] Astrid Epiney, Prof. Dr., Professor at the University of Fribourg/Switzerland, Managing Director of the Institute for European Law, Rector of the University of Fribourg/Switzerland [Chapter 5] Sigrid Gies, Legal Officer at the Bureau of the Provincial Commissioner for Animal Welfare (Baden-Württemberg, Germany), former Research Assistant at the Chair for Public Law, International and European Law, University of Konstanz/Germany [Chapter 17] Julia Herzog-Schmidt, Dr., Legal consultant and researcher [Chapter 12] Constantin Hruschka, Dr., Senior Researcher at the Max Planck Institute for Social Law and Social Policy, Munich/Germany and Lecturer at the Universities of Bielefeld/Germany, St. Gallen/Switzerland and Bern/Switzerland [Chapter 23] Sara Iglesias Sánchez, Dr., Référendaire, Court of Justice of the European Union [Chapter 14] Meltem Ineli-Ciger, Dr., Assistant Professor at the Suleyman Demirel University, Isparta/Turkey Member of the Odysseus Network of Academic Experts on Immigration and Asylum Law in Europe [Chapter 24] Marcel Kau, Dr., LLM. (Georgetown), Associate Professor at the University of Konstanz/Germany [Chapter 10] Tobias Klarmann, Dr., Research Assistant at the Chair of Constitutional Law, Public International Law and Human Rights Law, University of Tübingen/Germany [Chapter 8 Articles 6-22] Ingo Kraft, Prof. Dr., Presiding Judge at the Federal Administrative (Supreme) Court, Leipzig/ Germany. Professor at the University of Leipzig/Germany [Chapter 20 Articles 11-14] Roman Lehner, Dr., Privatdozent at the University of Göttingen/Germany [Chapter 12, 17] Hendrik Lörges, LL.M., Legal Officer at the German Federal Ministry of the Interior, Berlin/ Germany [Chapter 16] Fabian Lutz, Dr., Senior Legal Expert, European Commission, DG Migration and Home Affairs [Chapter 11 Articles 1-11, 14, 18] Francesco Maiani, Prof. Dr., Professor in European Law at the University of Lausanne/Switzerland [Chapter 23] Sergo Mananashvili, Dr., International Centre for Migration Policy Development (ICMPD) [Chapter 11 Articles 12-13, 15-17, 19-23] Annalisa Meloni, Dr., Senior Lecturer in Law, University of East London/United Kingdom [Chapter 3] Madalina Moraru, Dr., Research Fellow, Centre for Judicial Cooperation, European University Institute, Florence/Italy and Lecturer in European Union Law, Judicial Studies Institute, Masaryk University, Brno/Czech Republic [Chapter 11 Articles 12-13, 15-17, 19-23] Clíodhna Murphy, Dr., Associate Professor, Maynooth University/Ireland [Chapter 15] Sarah Progin-Theuerkauf, Prof. Dr., Professor for EU Law and Migration Law, Co-Director of the Centre for Migration Law, University of Fribourg/Switzerland [Chapter 5]

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List of Authors Bernard Ryan, Prof. Dr., Professor of Migration Law, University of Leicester/United Kingdom [Chapter 4, 6] Florian Schierle, Head of Division at the Federal Ministry of Labour and Social Affairs, Berlin/ Germany [Chapter 13] Achilles Skordas, Prof. Em. Dr., University of Bristol/United Kingdom, Senior Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg [Chapter 19] Hugo Storey, Judge at the UK Upper Tribunal Immigration and Asylum Chamber (retired) [Chapter 20 Articles 15-19] Daniel Thym, Prof. Dr., Professor of European and International Law at the University of Konstanz (Germany), Director at the Research Centre Immigration & Asylum Law, Member of the Odysseus Network of Academic Experts on Immigration and Asylum Law in Europe [Chapter 1, 2, 7, 9, 18] Evangelia (Lilian) Tsourdi, (PhD, Université libre de Bruxelles) Assistant Professor and Dutch Research Council grantee (NWO VENI) at the Faculty of Law and the Maastricht Centre for European Law of the University of Maastricht [Chapter 22] Jens Vedsted-Hansen, Prof. Dr., Professor at Aarhus University/Denmark, Member of the Odysseus Network of Academic Experts on Immigration and Asylum Law in Europe [Chapter 21] Anja Wiesbrock, Dr., Senior Judicial Adviser at the Research Council of Norway [Chapter 15]

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List of Abbreviations ADD ................................... AFSJ .................................... AG ....................................... AMIF .................................. Asylum and Migration Interoperability Regulation (EU) 2019/ 818 ...................................... Asylum Procedures Directive 2013/32/EU ..... former Asylum Procedures Directive 2005/85/ EC ....................................... Asylum Qualification Directive 2011/95/EU .....

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

Asylum Reception Directive 2013/33/EU ..... former Asylum Reception Directive 2003/9/EC Blue Card Directive 2009/50/EC ....................... Borders and Visa Interoperability Regulation (EU) 2019/ 817 ...................................... BVerfGE ............................ BVerwGE ...........................

addendum Area of Freedom, Security and Justice Advocate General Asylum, Migration and Integration Fund Regulation (EU) 2019/818 of the European Parliament and of the Council of 20 May 2019 on establishing a framework for interoperability between EU information systems in the fields of police and judicial cooperation, asylum and migration (OJ 2019 L 135/27) Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180/60) Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326/13) Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of thirdcountry nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337/9) Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304/12) Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180/96) Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (OJ 2003 L 31/18) Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (OJ 2009 L 155/17) Regulation (EU) 2019/817 of the European Parliament and of the Council of 20 May 2019 on establishing a framework for interoperability between EU information systems in the fields of borders and visa and amending (OJ 2019 L 135/27) Decision of the German Federal Constitutional Court Decision of the German Federal Administrative Court

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List of Abbreviations C .......................................... CAT .................................... CEAS .................................. CEPS ................................... CISA ................................... cf. ......................................... CFI ...................................... CFR ..................................... Citizenship Directive 2004/38/EC .......................

CJEU ................................... CML Rev. .......................... CoE ..................................... COM .................................. Convention Implementing the Schengen Agreement ...................................

CoR ..................................... COREPER ......................... CRC .................................... CUP .................................... doc. ..................................... Dublin II Regulation (EC) No 343/ 2003 .................................... Dublin III Regulation (EU) No 604/ 2013 ....................................

e. g. ...................................... EASO .................................. EASO Regulation (EU) No 439/2010 ..................... EBGT .................................. EC ....................................... ECHR ................................. ECJ ...................................... ECR ..................................... ECRE ..................................

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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 see Convention Implementing the Schengen Agreement confer Court of First Instance of the European Union (until 2009; thereafter: General Court) Charter of Fundamental Rights of the European Union Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158/77), as amended last by Regulation (EU) No 492/2011 (OJ 2011 L 141/1) Court of Justice of the European Union Common Market Law Review Council of Europe Commission Documents for the other institutions (legislative proposals, communications, reports, etc.) Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders of 19 June 1990 (OJ 2000 L 293/19). Committee of the Regions Committee of Permanent Representatives of the Government of the Member States Convention on the Rights of the Child Cambridge University Press Document Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ 2003 L 50/1) Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ 2013 L 180/31) for example European Asylum Support Office Regulation (EU) No 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European Asylum Support Office (OJ 2010 L 132/11). European Border Guard Team European Community (-ies) Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) European Court of Justice European Court Reports European Council on Refugees and Exiles

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List of Abbreviations ECtHR ................................ ed/eds ................................. EDPS .................................. EEA ..................................... EEC ..................................... EES ...................................... EES Regulation (EU) 2017/2226 ................

EFTA .................................. EJIL ..................................... EJML .................................. EL Rev. ............................... ELJ ...................................... Employers Sanctions Directive 2009/52/EC .....

EP ........................................ ESC ..................................... et al. .................................... et seq .................................. et seqq ................................ etc. ....................................... ETS ..................................... EU ....................................... EuConst ............................. Eurodac Regulation (EU) No 603/2013 .....................

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

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

European Court of Human Rights editor/editors European Data Protection Supervisor European Economic Area European Economic Community Entry/Exit System Regulation (EU) 2017/2226 of the European Parliament and of the Council of 30 November 2017 establishing an Entry/Exit System (EES) to register entry and exit data and refusal of entry data of thirdcountry nationals crossing the external borders of the Member States and determining the conditions for access to the EES for law enforcement purposes (OJ 2017 L 327/28). European Free Trade Association European Journal of International Law European Journal of Migration and Law European Law Review European Law Journal Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals (OJ 2009 L 168/24) European Parliament Economic and Social Committee et alii/and others et sequentes/following et sequentes/and the following et cetera European Treaty Series European Union European Constitutional Law Review Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (OJ 2013 L 180/1) Statistical Office of the European Union Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251/12) Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158/77), as amended last by Regulation (EU) No 492/2011 (OJ 2011 L 141/1) 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 (EU) 2019/1896 ..........................

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

i.e. ........................................ ibid. ..................................... ICC ..................................... ICC Statute ....................... ICJ ....................................... ICJ Statute ......................... ICT ...................................... ICT Directive 2014/66/ EU .......................................

ICCPR ................................ ICESCR .............................. ICLQ ................................... ICON .................................. ICRC ................................... IJRL ..................................... ILO ...................................... IM Rev. .............................. IMO .................................... IO ........................................ IOM .................................... ISCED ................................ JEMS ................................... JCMS .................................. JRSt. .................................... lit. ........................................ Long-Term Residents Directive 2003/109/EC ...

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

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List of Abbreviations MBA ................................... MN ..................................... MoU ................................... NGO ................................... No ....................................... OJ ........................................ OSCE .................................. OUP .................................... p./pp. .................................. para ..................................... paras ................................... Posted Workers Directive 96/71/EC ....................

Refugee Convention ........ Rec. ..................................... former Researchers Directive 2005/71/EC ..... REV .................................... Return Directive 2008/ 115/EC ...............................

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

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

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

SEC ..................................... sent. ....................................

Master of business administration margin number/note Memorandum of Understanding Non-Governmental Organisation number Official Journal of the European Union Organisation for Security and Cooperation in Europe Oxford University Press page/pages paragraph paragraphs Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18/1), as amended last by Directive (EU) 2018/957 (OJ 2018 L 173/16) Geneva Convention relating to the Status of Refugees of 28 July 1951 as amended by the New York Protocol of 21 January 1967 Recommendation Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research (OJ 2005 L289/15) revised 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) International Convention on Maritime Search and Rescue (1979) Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2016 L 77/1), as amended last by Regulation (EU) 2019/817 (OJ 2019 L 135/27) Regulation (EC) No 562/2006 of the European Parliament and of the Council of 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) see Convention Implementing the Schengen Agreement Regulation (EU) No 656/2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (OJ 2014 L189/93) Directive 2014/36/EU of the European Parliament and of the Council on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers of 26 February 2014 (OJ 2014 L 94/375) Commission Documents which cannot be classified in any of the other series sentence

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List of Abbreviations SIAC ................................... Single Permit Directive 2011/98/EU .......................

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

SIS Border Checks Regulation (EU) 2018/ 1861 ..................................... SIS Return Regulation (EU) 2018/ 1860 .................................... Social Security Coordination Regulation (EC) No 883/2004 .....................

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

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

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

TEU .................................... TEU (Nice version) ......... TEU (Maastricht version) ....................................

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Special Immigration Appeals Commission Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State (OJ 2011 L 343/1) Schengen Information System 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 2006 L 381/4), with later amendments Regulation (EU) 2018/1861 of the European Parliament and of the Council of 28.11.2018 on the establishment, operation and use of the Schengen Information System (SIS) in the field of border checks (OJ 2018 L 312/14) Regulation (EU) 2018/1860 on the use of the Schengen Information System (SIS) for the return of illegally staying third-country nationals (OJ 2018 L 312/1) Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security system (Text with relevance for the EEA and for Switzerland) (OJ 2004 L166/ 1), as amended last by Regulation (EU) 2019/1149 (OJ 2019 L186/21) Safety of Life at Sea Convention (1974) Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing (OJ 2016 L132/21) Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service (OJ 2004 L375/12) Treaty establishing the European Community EC Treaty (as amended by the Treaty of Nice) EC Treaty (as amended by the Treaty of Maastricht) EC Treaty (as amended by the Treaty of Amsterdam) Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof (OJ 2001 L 212/12), as amended last by Commission Decision 2003/690/EC (OJ 2003 L 251/23) Treaty on European Union EU Treaty (as amended by the Treaty of Nice) EU Treaty (as amended by the Treaty of Maastricht)

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List of Abbreviations TEU (Amsterdam version) .................................... TFEU .................................. UDHR ................................ UK ....................................... UN ...................................... UNCLOS ........................... UNHCR ............................. Visa Code Regulation (EC) No 810/ 2009 .................................... VIS ...................................... VIS Regulation (EC) No 767/2008 .....................

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

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

EU Treaty (as amended by the Treaty of Amsterdam) Treaty on the Functioning of the European Union Universal Declaration of Human Rights United Kingdom United Nations United Nations Convention on the Law of the Sea (1982) United Nations High Commissioner for Refugees Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) (OJ 2009 L 243/1), as amended last by Regulation (EU) 2019/1155 (OJ 2019 L 188/25) Visa Information System Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas (VIS Regulation) (OJ 2008 L 218/60), with later amendments Regulation (EU) 2018/1806 of the European Parliament and of the Council of 14 November 2018 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (OJ 2018 L 303/39), as amended last by Regulation (EU) 2019/592 (OJ 2019 L103I/1) Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (OJ 2001 L 81/1)

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PART A OVERARCHING THEMES Chapter 1. Constitutional Framework and Principles for Interpretation Select Bibliography (see also the selected bibliographies for the introductory chapters on entry and border controls, asylum and immigration policies): 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); Chetail/De Bruycker/Maiani (eds), Reforming the Common European Asylum System (Bruylant, 2016); Costello, The Human Rights of Migrants and Refugees in European Law (OUP, 2016); Craig, EU Administrative Law, 3rd edn (OUP, 2018); De Bruycker/De Somer/De Brouwer (eds), From Tampere 20 to Tampere 2.0 (EPC, 2019); Groenendijk, ‘Recent Developments in EU Law on Migration: The Legislative Patchwork and the Court’s Approach’, EJML 16 (2014), p. 313–335; Funke, ‘Primärrechtliche Grundlagen’, in: Wollenschläger (ed), Enzyklopädie Europarecht, Band X, 2nd edn (Nomos, 2021), § 16; Guild, Immigration Law in the European Community (Martinus Nijhoff, 2001); Guild/Minderhoud (eds), The First Decade of EU Migration and Asylum Law (Martinus Nijhoff, 2012); Hailbronner, Immigration and Asylum Law and Policy of the European Union (Kluwer, 2000); Icard (ed), Les flux migratoires au sein de l’Union européenne (Bruylant, 2018); 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; Majcher, The European Union Returns Directive and its Compatibility with International Human Rights Law (Brill Nijhoff, 2020); Moreno-Lax, Accessing Asylum in Europe (OUP, 2017); Papagianni, Institutional and Policy Dynamics of EU Migration Law (Martinus Nijhoff, 2006); Peers, EU Justice and Home Affairs Law. Vol. 1, 4th edn (OUP, 2016); Peers/Hervey/Kenner/Ward (eds), The EU Charter of Fundamental Rights. A Commentary (C.H. Beck/Hart, 2014); Reneman, ‘Asylum and Article 47 of the Charter’, in: Crescenzi/Forastiero/ Palmisano (eds), Asylum and the EU Charter of Fundamental Rights (Editoriale Scientifica, 2018), p. 59–78; Thym, ‘Between “Administrative Mindset” and “Constitutional Imagination”. The Role of the Court of Justice in Immigration, Asylum and Border Control Policy’, European Law Review 44 (2019), p. 138–158; Thym, ‘EU Migration Policy and its Constitutional Rationale’, CML Rev. 50 (2013), p. 709–736; Thym, ‘A Bird’s Eye View on ECJ Judgments on Immigration, Asylum and Border Control Cases’, EJML 21 (2019), p. 166–193; Thym, Migrationsverwaltungsrecht (Mohr Siebeck, 2010); Thym, ‘Supranational Differentiation and Enhanced Cooperation’, in: Tridimas/Schütze (eds), The Oxford Principles of European Union Law. Vol. I: The European Union Legal Order (OUP, 2018), p. 847–883; Walker (ed), Europe’s Area of Freedom, Security and Justice (Hart, 2004); Wiesbrock, Legal Migration to the European Union (Martinus Nijhoff, 2010). Note that literature in the selected bibliography will be mentioned in an abbreviated version in the text below, referring to the authors(s) and a short title only.

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 (including Proportionality) ................................... 3. More Favourable National Provisions ................................................... 4. Application in Domestic Law .................................................................. 5. Procedural Fundamental Rights Guarantees........................................

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Constitutional Framework and Principles for Interpretation III. Territorial Scope (Member State Participation) ...................................... 1. Denmark ....................................................................................................... 2. Ireland (and the United Kingdom) ........................................................ IV. Human Rights and International Law ....................................................... 1. Charter of Fundamental Rights............................................................... 2. European Convention on Human Rights ............................................. 3. Refugee Convention and International Human Rights ..................... 4. Other International Agreements .............................................................

38 40 42 46 47 51 53 56

I. General Remarks 1. Evolution of the Treaty Regime EU immigration and asylum legislation is nowadays adopted on the basis of 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 framework. Informal cooperation had 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, in which the Member States took the initiative and side-lined the supranational institutions (see Thym, Legal Framework for Entry and Border Controls, MN 1), and the Dublin Convention of 1990 (see Thym, Legal Framework for EU Asylum Policy, MN 1). More detailed rules were laid down in the decisions of the Schengen Executive Committee and other bodies established under said Conventions, where national interior ministers adopted multiple implementing decisions, intergovernmental resolutions or similar arrangements (this mode of decision-making was often criticised as intransparent and undemocratic2). These rules later became known as the ‘Schengen Acquis’ and formed the backbone of EU immigration and asylum law, which will be discussed in this volume. While the UK and Ireland remained outside the Schengen framework, most other Member States joined Schengen (see below MN 42). 2 In 1992, the Treaty of Maastricht established a framework for decision-making on justice and home affairs within the newly founded European Union, which retained intergovernmental characteristics. At the time, the EU Treaty only allowed for the adoption of non-binding joint positions or the elaboration of international treaties (not supranational directives and regulations) to be ratified by national parliaments.3 They complemented informal cooperation, which had existed prior to the Treaty of Maastricht on a purely intergovernmental basis.4 Rules on intergovernmental justice and 1

1 Cooperation within the so-called TREVI group, which focused on internal security in response to terrorist attacks and selected asylum matters; see the historic study of Oberloskamp, Codename TREVI (De Gruyter Oldenbourg, 2016); on political debates on the use of supranational EEC competences throughout the 1980s, see Papagianni, Institutional and Policy Dynamics, p. 3–16. 2 See Curtin/Meijers, ‘The Principle of Open Government in Schengen and the European Union’, CML Rev. 32 (1995), p. 391–442; for improvements after the integration into the EU legal order, see Thym, ‘The Schengen Law: A Challenge for Legal Accountability in the European Union’, ELJ 8 (2002), p. 218, 221–233. 3 Cf. Article K.3(2) EU Treaty as amended by the Treaty of Maastricht of 7 February 1992 (OJ 1992 C 191/1); for further comments, see McMahon, ‘Maastricht’s Third Pillar: Load-Bearing or Purely Decorative?’, Legal Issues of European Integration 22 (1995), p. 51–64. 4 See, e.g. on the so-called Ad-hoc group on immigration AHIC and the London Resolutions on asylum of 1992, Denza, The Intergovernmental Pillars of the European Union (OUP, 2002), ch. 3.

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Chp. 1 home affairs in the Maastricht Treaty proved rather inefficient and produced little legally binding output.5 Nevertheless, the informal arrangements provided a bedrock of common standards which the EU institutions could build on once the Treaty of Amsterdam established a more robust Treaty base for migration and asylum law within the supranational EC Treaty.6 To satisfy British, Irish and Danish demands, these states were granted an opt-out (see below MN 38–45). At the same time, the Schengen Acquis was incorporated into the EU framework, thereby giving more substance to the new Treaty bases (see Thym, Legal Framework for Entry and Border Controls, MN 2–3). Since the entry into force of the Treaty of Amsterdam, the EU institutions have been 3 allowed to adopt regular Community instruments, in particular directives and regulations, which can be directly applicable and benefit from primacy over domestic law in cases of conflict, in line with the established principles of the supranational legal order. Nonetheless, the transfer of immigration, asylum and border controls to the supranational ‘first pillar’ remained incomplete, since the Treaties of Amsterdam and Nice continued specific institutional arrangements that diverged from the supranational decision-making method.7 This was deemed necessary in order to take account of the political ‘sensitiveness’ of matters which had hitherto belonged to the core issues of national sovereignty.8 For that reason, the Council acted unanimously on proposals from the Commission or a Member State in most subject areas and the European Parliament was only consulted. Moreover, not all domestic courts could make preliminary references to the Court of Justice.9 The Treaty of Nice, which entered into force in 2003, extended today’s ordinary legislative procedure to some policy fields10 and one year later the Council activated a bridging clause in the EC Treaty rendering more areas subject to qualified-majority voting in the Council and co-decision powers of the European Parliament.11 However, full supranationalisation was brought about only by the entry into force of the Treaty of Lisbon, which aligned immigration and asylum law with the orthodoxy of supranational decision-making. In the age of the Lisbon Treaty we may conclude that the former ‘ghetto’12 has been gentrified; Articles 77–80 TFEU are part and parcel of the supranational integration method.13 The Treaty of Lisbon not only streamlined decision-making procedures; it also 4 consolidated the scope of Union competences through a substantive revision of today’s Articles 77–80 TFEU in line with the proposal of the erstwhile Constitutional Treaty, which never entered into force. The European Convention, which drafted the Constitutional Treaty, was particularly active in the field of justice and home affairs and its 5 See Hailbronner, Immigration and Asylum Law, p. 47–52; Guild, Immigration Law, p. 255–273; and Monar/Morgan (eds), The Third Pillar of the European Union (Peter Lang, 1995). 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, Immigration Law, p. 295–311. 7 See Hailbronner, ‘European Immigration and Asylum Law under the Amsterdam Treaty’, CML Rev. 35 (1998), p. 1047–1067; Papagianni, Institutional and Policy Dynamics, p. 25–51; and Labayle, ‘Un espace de liberté, de sécurité et de justice’, Revue trimestrielle de droit européen 33 (1997), p. 813–881. 8 See Walker, ‘In Search of the Area of Freedom, Security and Justice’, in: ibid. (ed), Europe’s Area, p. 3, 16–20. 9 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. 10 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); for comments see Papagianni, Institutional and Policy Dynamics, p. 88–100. 11 See Decision 2004/927/EC (OJ 2004 L 396/45); and Kuijper, ‘The Evolution of the Third Pillar from Maastricht to the European Constitution: Institutional Aspects’, CML Rev. 41 (2004), p. 609, 613–619. 12 Peers, EU Justice and Home Affairs Law, 1st edn (Longman, 2000), p. 2. 13 See Peers, EU Justice, p. 8–17; and Labayle, ‘La nouvelle architecture de l’espace de liberté, de sécurité et de justice’, in: Kaddous/Dony (eds), D’Amsterdam à Lisbonne (Helbing Lichtenhahn, 2010), p. 3–28.

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conclusions on immigration and asylum retain full relevance, since they were later integrated in the Lisbon Treaty without major changes.14 To understand the meaning of Treaty formulations such as ‘integrated management system for external borders’ (Article 77(2)(d) TFEU), it is helpful to consult the drafting documents of the European Convention.15 The relevance of these debates for the scope of EU competences will be discussed in more detail in the introductions to the different chapters of this commentary dealing with border controls and visas (see Thym, Legal Framework for Entry and Border Controls, MN 7–24), immigration (see Thym, Legal Framework for EU Immigration Policy, MN 9–27) and asylum (see Thym, Legal Framework for EU Asylum Policy, MN 8–36).

2. Objectives for Law-Making Besides the consolidation of Union competences, the Treaty of Lisbon endorsed the self-sufficiency of EU immigration and asylum law in line with the reform steps agreed upon in the debate leading towards the Constitutional Treaty (see above MN 4). EU activity on the basis of Articles 77–80 TFEU is no longer presented as a spillover of the single market in line with the original assumption that the abolition of border controls within the Schengen area necessitated ‘flanking measures’ compensating Member States for the loss of control options at domestic borders (see Thym, Legal Framework for Entry and Border Controls, MN 3). Instead, immigration and asylum law was reaffirmed as a self-sufficient policy field in its own right within the area of freedom, security and justice,16 which Article 3(2) TEU lists among the central objectives of the European project. The concept of the ‘area of freedom, security and justice’ was first introduced first by the Treaty of Amsterdam and was later reinforced by the Treaty of Lisbon (in line with the Constitutional Treaty). It was conceived of as a grand design mirroring earlier projects to realise a single market or economic and monetary union, which were similarly based on a political vision to be realised through lawmaking, for which Treaty changes established new competences subject to streamlined decision-making procedures, thereby pushing the process of European integration into new directions.17 In the case of justice and home affairs, the success of this venture was complicated by the difficulty that it was not immediately clear what exactly the ‘area of freedom, security and justice’ was meant to mean. 6 The conceptual autonomy of the area of freedom, security and justice confirms that EU immigration and asylum law does not replicate the mobility regime for Union citizens. Two basic features define the new Treaty regime and illustrate that the area of freedom, security and justice differs from the historic template of Union citizenship: 5

14 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; for the draft of the European Convention of 18 June 2018 see OJ 2003 C 169/1. 15 For details, see Ladenburger/Verwilghen, ‘Policies Relating to the Area of Freedom, Security and Justice’, in: Amato/Bribosia/de Witte (eds), Genèse et destinée de la Constitution européenne (Bruylant, 2007), p. 743–772; Thym, The Area of Freedom, Security and Justice in the Treaty establishing a Constitution for Europe, WHI Paper 12/2004, http://www.whi-berlin.eu/documents/whi-paper1204.pdf [last accessed 1 June 2021]; Labayle, ‘L’espace de liberté, sécurité et justice dans la Constitution pour l’Europe’, Revue trimestrielle de droit européen 41 (2005), p. 437–472; Weber, ‘Das Europäische Flüchtlings- und Migrationsrecht im Lichte des EU-Verfassungsentwurfs’, in: Pache (ed), Die Europäische Union – Ein Raum der Freiheit, der Sicherheit und des Rechts? (Nomos, 2005), p. 59, 74–89; and den Boer, ‘The European Convention and Its Implications for Justice and Home Affairs Cooperation’, in: Apap (ed), Justice and Home Affairs Law in the EU (Elgar, 2004), p. 121–134. 16 At a textual level, Article 67 TFEU defines the area of freedom, security and justice without reference to the concept of flanking measures (as did Article 61 lit. a EC Treaty-Amsterdam/Nice). 17 See Monar, The Area of Freedom, p. 554–555.

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Chp. 1 firstly, legislation concerning third country nationals is not usually based on individual rights to cross-border movement at constitutional level (see Thym, Legal Framework for EU Immigration Policy, MN 28–36); secondly, justice and home affairs are typified by a collection of diverse objectives laid down in the EU Treaties, which were introduced by the Treaty of Lisbon. The abolition of internal borders is complemented by ‘enhanced measures to combat illegal immigration’18, which , nevertheless, must be in ‘compliance with the principle of non-refoulement.’19 Generally speaking, ‘the efficient management of migration flows’20 is to be accompanied by ‘fair[ness] towards third country nationals.’21 The combination of three broad theoretical concepts, which can have diverse – and potentially contradictory – meanings depending on the context and the ideological predisposition in the notion of ‘area of freedom, security and justice’ reinforces the underlying uncertainty.22 These objectives may be summarised under the heading of ‘migration governance’ – a choice of terminology recognising that the migration control perspective of state authorities should ideally be accommodated with the legitimate interests of migrants.23 Given the multitude of policy objectives whose interaction needs to be adjusted in the legislative process the abstract designation of ‘justice and home affairs’ might be more appropriate than the grand slogan of an ‘area of freedom, security and justice’, which hints at an underlying normative vision that might not exist. The EU legislature benefits from principled discretion when realising the Treaty 7 objectives. The EU institutions are bound to promote the Treaty objectives, even if they do not regularly translate into judiciable yardsticks for secondary legislation24 – mirroring the constitutional status of the overarching aims in Articles 4 and 21 TEU. Academics may criticise the predominance of securitarian approaches focusing on migration control,25 but such criticism remains a conceptual critique with no immediate legal implications as long as it does not fall foul of judiciable constitutional requirements, such as human rights. This principled discretion on the side of the legislature in realising the Treaty objectives is confirmed, within the area of freedom, security and justice, by the inherent contradictions between different objectives: judges are badly placed to decide how to balance the ‘fair treatment’26 of third country nationals and ‘enhanced measures to combat illegal immigration’27 short of human rights standards, which individuals can rely on in courts (see below MN 46–55). Moreover, EU immigration and asylum law is not only bound to promote the objectives laid down in Articles 77–80 TFEU, since it must also contribute to the realisation of general objectives, such as ‘full employment’ (Article 3(1) TEU), which arguably supports 18

Article 79(1) TFEU. Article 78(1) TFEU. 20 Article 79(1) TFEU. 21 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; Costello, ‘Administrative Governance and the Europeanisation of Asylum and Immigration Policy’, in: Hofmann/Türk (eds), EU Administrative Governance (Elgar, 2006), p. 287, 289–293; and the introductory chapters on entry and border controls, immigration and asylum in this Commentary. 22 See Monar, The Area of Freedom, p. 552–562; and Walker, ‘In Search of the Area of Freedom, Security and Justice’, in: ibid. (ed), Europe’s Area, p. 3, 5–10. 23 See Thym, EU Migration Policy, p. 718–723. 24 See Thym, Migrationsverwaltungsrecht, p. 96–99; and Bast, Aufenthaltsrecht, p. 141–144. 25 By way of example, see Guiraudon, ‘European Integration and Migration Policy’, JCMS 38 (2000), p. 251–271; Acosta Arcarazo/Martire, ‘Trapped in the Lobby: Europe’s Revolving Doors and the Other as Xenos’, EL Rev. 39 (2014), p. 362–379. 26 Article 67(2) TFEU. 27 Article 79(1) TFEU; emphasis added. 19

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restrained rules on the access of lesser qualified migrants for as long as unemployment remains ubiquitous among Union citizens.28 The same applies to the objectives of external action, which include, among other things, the eradication of poverty in developing countries.29 7a Among the objectives listed in the EU Treaties, the ‘fair treatment of third country nationals’ (Article 79(1) TFEU; similarly, Article 67(2) TFEU; French: traitement équitable; German: angemessene Behandlung) deserves closer attention, since it takes up a basic notion of social justice. While the formulation sounds grand at first reading, closer inspection advises caution. Firstly, the provision presents itself as a negative comparison with the ‘equal treatment’ of Union citizens, thereby signalling that primary law allows for a lesser degree of protection for third country nationals (see Thym, Legal Framework for EU Immigration Policy, MN 33–36).30 The expression was used first in the conclusions of the Tampere European Council (see below MN 8) that also promised more advanced rights for long-term residents, while employing ‘fair treatment’ as the standard formula for other third country nationals who reside legally.31 Historically, the term ‘fair treatment’ resonates with customary international rules on the treatment of foreigners, more specifically adequate standards for compensation.32 Secondly, the meaning of ‘fairness’ is, like ‘justice’33, notoriously difficult to determine. John Rawls may have built a theory of justice around the concept of ‘fairness’34, which, nonetheless, remains an essentially contested concept. To paraphrase constitutional theorist Jeremy Waldron: there are many of us and we disagree about fairness.35 Thirdly, the concept of fairness may indicate that the Treaties aim at a level of protection that transcends the minimum requirements of fundamental rights.36 Nevertheless, it will be difficult to deduct 28 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. 29 Cf. Article 21(2) TEU, which can be used as a legal argument to prevent ‘brain-drain.’ 30 Similarly on the implicit distinction from Union citizens, see Wilderspin, ‘Article 79 TFEU’, in: Kellerbauer/Klamert/Tomkin (eds), The EU Treaties and the Charter of Fundamental Rights. A Commentary (OUP, 2019), para 8; Funke, Primärrechtliche Grundlagen, paras 13, 58; Iglesias Sánchez, ‘Constitutional Identity and Integration: EU Citizenship and the Emergence of a Supranational Alienage Law’, GLJ 18 (2017), p. 1797, 1803; and Stern/Tohidipur, ‘Migration von Drittstaatsangehörigen’, in: von Arnauld (ed), Enzyklopädie Europarecht. Band X: Europäische Außenbeziehungen (Nomos, 2014), § 14 para 122. 31 See European Council, Presidency Conclusions of the Meeting on 15/16 October 1999 in Tampere, paras 18, 21; for further comments see Thym, Long-Term Residents Directive 2003/109/EC, Article 1 MN 8. 32 Other language versions demonstrate a direct linguistic similarity with the so-called Hull Doctrine requiring ‘adequate’ compensation in case of expropriation, which similarly aimed at different standards for nationals and foreigners, albeit under reverse circumstances, since the objective was to treat foreigners better than nationals who often received nothing in case of expropriation; I would like to thank Sara Iglesias Sánchez for pointing out the similarity to me; on the background, see Jennings/Watts, Oppenheim’s International Law, 9th edn (OUP, 1992), p. 910–926. 33 Note that the English version employs the normative term ‘justice’ (French: justice), while other language versions use the more technical word ‘law’ (German: Recht; Dutch: recht); be it as it may, there was no common understanding about what the highly abstract term was meant to express; see Monar, The Area of Freedom, p. 560–562. 34 See Rawls, A Theory of Justice (Harvard UP, 1971). 35 Cf. the first phrase of Waldron, Law and Disagreement (Clarendon, 1999), which refers to ‘justice’, not ‘fairness.’ 36 See Thym, Citizens and Foreigners in EU Law, ELJ 22 (2016), p. 296, 306–311; McCormack-George, ‘Equal Treatment of Third-Country Nationals in the European Union: Why Not?’, EJML 21 (2019), p. 53, 65; and Groenendijk, ‘Legal Migration’, in: De Bruycker et al., From Tampere 20, p. 61, 64; in any case, it cannot be understood as an authorisation to establish standards that are lower than the requirements of the Charter, as suggested by Friðriksdóttir, What Happened to Equality? (Brill/Nijhoff, 2017), p. 327.

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Chp. 1 judiciable standards from the abstract notion of fairness beyond the legally binding minimum requirements of human rights law.37 The legislature has a principled discretion when determining what it considers fair and how it relates to other Treaty objectives (see above MN 7).

3. Political Programming

Article 68 TFEU The European Council shall define the strategic guidelines for legislative and operational planning within the area of freedom, security and justice. In the initial stages of EU legislative harmonisation, the area of freedom, security 8 and justice established by the Treaty of Amsterdam was in search of an overarching rationale giving substance to the abstract notion of ‘freedom, security and justice’ (see above MN 6). An attempt to give justice and home affairs a political sense of direction was made by the programmes put forward by the European Council on the occasion of its meetings in Tampere (1999),38 The Hague (2004),39 Stockholm (2009)40 and Ypres (2014)41, which were complemented by policy-specific guidelines, the intergovernmental Pact on Immigration and Asylum of 2008,42 the European Agenda on Migration of 201543 or the ‘New Pact on Migration and Asylum’ of 2020.44 The theoretical underpinning of these programmes was met with criticism due to their lack of conceptual coherence across policy fields,45 but the programmes served important functions from a political perspective. They served as points of reference and provided political backing by heads of state or government for those supporting common action, thus helping to overcome resistance among domestic actors, when the European Council ‘urged’ hesitant interior ministers to ‘